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CDEflSIGHT DEPOSIXi 



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Compulsory Educatiok 






THE STATE OF OHIO 

VERSUS ' 

THE EEV. PATRICK FRANCIS QUIGLEY, D.D. 



Nihil mo.gis diligit Deus Opiimus quam libertatem Ecclesiae suae. 

Stus. Anselmus. 



<^^5„^^ 



PUBLISHED BY 

KOBEET DKUMMOND, 

444 Pearl Street, New yoRK. 
1894. 



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Copyrighted 

BY 

P, F. QUIGLEY. 



INTEODUCTOEY. 



On the 28th day of April, 1890, a person styling himself 
a truant officer called on me and demanded a list of the 
pupils of St. Francis de Sales School, giving their names, 
residences, ages, etc. I refused. I was indicted for a vio- 
lation of the Compulsory Education Law of the State of 
Ohio, arrested, imprisoned, and criminally prosecuted in 
the Court of Common Pleas. 

The case was carried to the Circuit Court, and thence to 
the Supreme Court of the State, and a decision rendered 
on the 10th day of May, a.d. 1892. 

A writer in the Edvxiationqil Beview for September, 1892, 
says : 

" This Toledo case was argued and decided on broad 
constitutional grounds," and "perhaps no decision more 
important to the future of all compulsory education legis- 
lation in this country has ever been rendered by an Ameri- 
can court." {Ed. Bev.^ Henry Holt & Co., New York, Sept. 
1892.) 

As this matter of compulsory education affects every 
man, woman, and child in the country, a report of the 
most important decision with regard to it ever rendered by 
any American court must be a matter of very great interest 
to the American people. That report is now presented to 
the public. Before proceeding to the consideration of the 
case itself, it will be well to look a little at the legislation 
on the subject out of which this case arose. 

This legislation has been pushed so quietly that al- 
though it has already been slipped into the statutes of 



IV INTBODUCTORY. 

tweutj-seven States of this Union, the people of those 
States, while prompt to denounce the law of Ohio, which 
the agitation in this case has brought to their notice, are 
often surprised to find that the principle of the law has 
already been intruded into the legislation of their own 
State. The mode of procedure is artful, ingenious, plau- 
sible, and generally successful. In some places there is an 
abuse in the matter of truancy. Children run about the 
streets when they ought to be at school, sometimes because 
of the neglect, sometimes because of the inability, of parents 
to control them. There is a great number of people in the 
country interested in keeping up a full attendance in the 
schools, some, from the best of motives, some from motives 
of personal interest. The more scholars in school the 
more need there is of school-buildings, school-furniture, 
school-supplies, and also school-teachers, and so the leg- 
islation is quietly pushed. An apparently innocent and 
very proper little bill is drafted requiring truant children 
to attend school. The clause reads, they must attend some 
school, public or private. It does not seem, therefore, to 
be in the interest of any particular kind of school. It is sim- 
ply to keep the children out of the streets ; to make them 
do what the parents generally suppose they are doing — to 
attend the school to which they have been sent by the 
parents. The parents, busy at their work, cannot watch 
the children all day and every day ; and it relieves their 
minds to know that there is a person employed Avhose 
special business it is to look after these things and keep 
the children from loitering by the way or avoiding the 
school altogether for a part of the day or a whole day or 
for days together, and thus not only losing the benefit of 
the school, but, what is* much more serious, drifting into 
bad company and objectionable associations and, possibly, 
spending the time in a manner more seriously criminal. 
Every one feels that it would be a good idea to guard 
against this, and therefore the proposition for a truant 
law is favorably received, and the law is passed. The 



IKTRODUCTORY. V 

people find that without any special care or trouble on 
their part the children are prevented from straying from 
the school. The contractors get orders for more build- 
ings ; the furniture-men for more supplies ; the stationers 
for more books, and more persons receive salaries as 
teachers. A great number of people is delighted with the 
new law. 

A great many other people are also pleased. To pass 
this law at all the State has had to begin by practically 
asserting that it has the right to control the education of 
all children in the State. It does not alarm parents by 
distinctly making this assertion in the law ; but the asser- 
tion is made just as distinctly as if it were put in the plain- 
est possible words, as the people soon began to find out. 
The mass of the parents are pleased with the law for the 
reasons stated. Certain others are pleased for other rea- 
sons stated. But there is a great power behind all these 
which is immensely pleased for reasons which it takes very 
good care not to state — at least, not publicly* 

There is a certain kind of people in this country who 
are professional public-school advocates. Now, we are all 
public-school advocates in that we are in favor of good 
and proper schools for the whole general public, for all 
the people of the country ; but these present professional 
public-school advocates are public-school advocates only 
in the sense that they are in favor of the public school 
system as they have got it now organized, and who are bit- 
terly opposed to any other possible public-school system, 
or any system by which the people may have some other 
kind of public schools than those which these professionals 
choose to allow them. 

These professional public-school advocates are delighted 
with the Truant Law because it has given them an oppor- 
tunity to assert the right of the State to control the education 
of children in defiance of the wishes of the parents. They 
state only a little of this principle at first. The first Truant 
Law is introduced under the title of a law to prevent tru- 



VI INTRODUCTOKY. 

ancy, and is made as unobjectionable as possible, consistent 
with saving the vital principle they are seeking to introduce. 
Then little by little, year by year, the principle is pushed, 
the Truant Law is expanded, and it finally develops into 
the complete, full-blown, Compulsory Education Law, 
wherein the right of the State to have complete control of 
the whole subject of education is assumed as a fact not to 
be questioned. 

Such has been the history of the law in the State of 
Ohio ; and such, with more or less of variation, has been the 
case in the twenty-seven States and Territories of this 
country in which the principle has been already adopted. 

They begin by simply forbidding truancy. After awhile 
they order that children must attend at least eight weeks in 
the year. Again, after awhile, they raise the amount to ten, 
to twelve, to sixteen, to twenty, to twenty-four, and last 
year Massachusetts raised it to thirty weeks in the year. 
The full public-school term is only about forty weeks. The 
'full possible Iknit of compulsion as to time in any one year 
is almost reached already. In the matter of compulsion as 
to studies they also begin mildly. First, with only three 
studies — reading, writing, and arithmetic. Ohio already 
requires reading, writing, arithmetic, grammar, geography, 
and the effects of alcohol on the human system. The prin- 
ciple is established. The list of studies may be increased 
at the will of the legislator. Having thus provided for 
Compulsory Education for nearly the whole of the school 
year, and for nearly the whole of the possible list of studies, 
there remained only the question as to how much of the 
life of a minor must be spent in the public schools. On 
this point also the advocates of compulsion began cau- 
tiously. They at first made attendance obligatory between 
the age of 8 and 12 years ; then they extended it to 14 ; 
then from 7 to 14 ; then, in some places, they raised it to 
16 ; and already with the aid of the labor unions, who wish 
to keep minors from competing with them, they are talking 
of raising it to 18 or 20, and finally to go to the full school 



INTRODUCTOBY. Vll 

age of 21 years. And now they are introducing kinder- 
gartens to take the children in at 5 years of age, and talk of 
taking them at 3. Very little remains now to carry the de- 
sired point of taking the children as soon as they may be 
safely removed from the mother's breast, and caring for 
them in public-schools until they are old enough to vote ; 
and from this to making such attendance compulsory is 
only another step, and as it is only " the first step which 
costs," and as that and several other steps are already 
taken, the rest is easy. 

It has been shown why those financially and profes- 
sionally interested are pleased with these proceedings. 
There is another class which is pleased — those people 
who are opposed to the Christian Religion. These oppo- 
nents of Religion are pleased because under this system 
they can make public-school education compulsory for the 
whole school year, and make the course of secular studies 
so extensive and exhausting that no room will be left for 
any religious instruction, even in private schools, supposing 
that private schools shall be allowed to exist. 

The Socialists are pleased because their doctrine of 
the entire supremacy of the State is recognized, and already 
in one great department of action enforced. The principle 
is established. If the State may take entire control of the 
business of Education, and conduct it entirely under State 
management, so may it take control of any and every kind 
of business, and conduct it entirely under State manage- ' 
ment, and thus give us the Socialist state in all its theo- 
retical perfection. 

The Communists are pleased because the fundamental 
principle of their doctrine is recognized, and already in one 
great department of life is applied almost to its last logical 
development. In the matter of Education there is already 
furnished at public cost the buildings, the furniture, the 
teachers, the text-books, and now in Colorado the clothing. 
One item alone remains — that of food ; but having gone so 
far, the State, having already begun by providing a luncheon 



Yin INTRODUCTORY. 

at mid-day, will not lialt long at the full demand. Then 
parents will not be required to either feed, cicifcike, or edu- 
cate their children. All they will be needed for is the prop- 
agation ; the State will do the rest. There will then be no 
further need of the family, and consequently no furthe-r 
need of mArriage, thereby giving ufe'^he id^eal Communistic 
state. 

What opposition is there to all this movement ? 

There are a great many people in this country who 
think the whole matter of Compulsory Education quite 
opposed to the principles of the American Constitution. 

Governor Pattison, of Pennsylvania, recently vetoed a 
Compulsory Education bill in that State, declaring that in 
his opinion : " Free attendance on free schools most befits 
a free people." (See pages 326 and 327 of this volume.) 

Some of the claims as to Compulsory Education in the 
Bennett Law were formerly repudiated at the polls by the 
people of Wisconsin. 

In Illinois, after a thorough discussion of the subject, 
the Compulsory Education Law in that State was repealed. 
The agitation on this subject of Compulsory Education, 
violating parental and conscience rights became so gen- 
eral in the United States that, in the recent Presidential 
election contest, both of the great political parties found 
it necessary to define their views on the subject. 

The Eepublican party declared as follows : " The 
ultimate reliance of free popular government is the intelli- 
gence of the people and the maintenance of freedom among 
men. We therefore declare anew our devotion to liberty 
of thought and conscience, of speech and press, and 
approve all agencies and instrumentalities which con- 
tribute to the education of the children of the land ; but, 
while insisting on the fullest measure of religious liberty, 
we are opposed to any union of Church and State." 

The Democratic party considered that this declaration 
did not sufficiently meet the case, and so it more distinctly 
declared for parental liberty and conscience rights in the 



INTRODUCTORY. IX 

following words : "Freedom of education being an essen- 
tial of civil and religious liberty, as well as a necessity for 
the development of intelligence, must not be interfered 
with under any pretext whatever. We are opposed to 
State interference with parental rights and rights of con- 
science in the education of children as an infringement of 
the fundamental Democratic doctrine that the largest in- 
dividual liberty consistent with the rights of others insures 
the highest type of American citizenship and the best 
government." 

In conclusion the platform says : " Upon this statement 
of principles and policy the Democratic party asks the 
intelligent judgment of the American people. It asks a 
change of administration and a change of system and a 
change of methods, thus assuring the maintenance unim- 
paired of institutions under w^hich the Kepublic has grown 
great and powerful." 

Mr. Clevela id, the candidate of the Democi^atic party, 
responding to this pronouncement, declared in his letter 
of acceptance as follows : 

" The assurance to the people of the utmost individual 
liberty consistent with peace and good order is a cardinal 
principle of our government. * * * The same principle 
requires that the line between the subjects which are prop- 
erly within governmental control and those which are more 
fittingly left to parental regulation should be carefully kept 
in view. An enforced education, wisely deemed a proper 
preparation for citizenship, should not involve the impair- 
ment of wholesome parental authority, nor do violence to 
the household conscience. Paternalism in government 
finds no approval in the creed of Democracy. It is a 
symptom of misrule, whether it is manifested in an unau- 
thorized gift or by an unwarranted control of personal and 

family affairs. 

•X- * ^ ^ * * 

" Called for the third time to represent the party of my 
choice in a contest for the supremacy of Democratic prin- 



X INTRODUCTORY. 

ciples, my grateful appreciation of its confidences less than 
ever effaces the solemn sense of mj responsibility. 

" If the action of the convention you represent shall 

BE INDORSED BY THE SUFFRAGES OF MY COUNTRYMEN, I will 

assume the duties of the great office for which I have been 
nominated, knowing full well its labors and perplexities, 
and with humble reliance upon the Divine Being, infinite 
in power to aid, and constant in a watchful care over a 
favored nation." 

The action of that convention was indorsed by the suf- 
frages of the American people, and by one of the greatest 
majorities known in our history the principles of the Demo- 
cratic party were adopted as the policy of the American 
State. 

My action in this case, while not a denial of the right 
of the State to exercise a certain amount of compulsion in 
education under certain circumstances, was yet in full 
accord with the principles thus adopted by the American 
people. But the Republican Judges of the Supreme Court 
of the State of Ohio refused to decide in accordance with 
these principles, and by their rulings in this case refused 
to recognize those parental rights and rights of conscience 
guaranteed by the American Constitution and confirmed 
by the vote of the American people. 

The history of the contest, the arguments for the people, 
and the ruling against liberty by the judges will be found 
fully set forth in the following report of the case. 

An appeal was taken in this case from the adverse decision 
of the lower courts to the judges of the Supreme Court of 
Ohio. An appeal still lies to the Supreme Court of the 
United States at Washington, D.C. An appeal is now taken 
to the sense of justice of the American reading public. 

A question which occupied the attention of the Ameri- 
can public during the recent Presidential campaign, and 
the courts of the State of Ohio for the greater part of two 
years, and the full and complete answer to it, can be 
found only by a careful perusal of the following pages. 



INTRODUCTORY. XI 

which give the report of what took place in those courts on 
the consideration of that question. 

Briefly stated, my objection was that/^he whole law 
was based on the first section of it, which assumed that the 
State had the right to the entire control of the subject of 
education to the extent of fixing one general standard of 
knowledge up to which every parent was bound to educate 
all his children, regardless of age, sex, or condition in life, 
and to do it in such way, and at such time and place, and 
to such extent as the State chose to prescribe ; that all the 
other sections of the law were merely to give effect to that 
section one, and that if that section was unconstitutional, 
all the rest fell with it. 

This was my real contention, and a perusal of the argu- 
ments of my counsel will show that it was not only stated 
with sufficient clearness, but that it was stated and re- 
stated and urged in apparently every possible manner. 
My objection was that the law^ was unconstitutional be- 
cause of the unwarranted invasion of parental rights as to 
all people, and that as to some people it was also unconsti- 
tutional because of its invasion of conscience rights in re- 
ligious matters specially guaranteed to them by the consti- 
tution of the State of Ohio, and also by the Constitution of 
the United States. 

Every American citizen is profoundly interested in the 
preservation to him of all his natural rights. This being so, 
he is likewise profoundly interested in the preservation to 
all his fellow-citizens of all their natural rights. He is so 
interested for two reasons : first, because justice requires 
that what he asks for himself he shall be willing to grant 
to others ; second, his personal interest demands it, be- 
cause if the provisions of the constitution may be disre- 
garded as to one class to-day because of prejudice or profit, 
they may be disregarded as to others at other times for 
the same or other reasons. 

The Catholics and the Lutherans of the United States 
are now maintaining about one million children in parochial 



Xll IKTKODUCTORY. 

schools, because they are not satisfied with the system of 
schools which the majority now provide for them. They 
are compelled to pay taxes in support of this public-school 
system ; but they declare they cannot use it, and they 
prove the sincerity of their declaration by what in this 
case is an indisputable proof. Their objection is not 
shown by words alone, but also by heroic deeds. They 
pay the full cost of educating their children in the public 
schools, and then refuse to use them, voluntarily taxing 
themselves again millions of dollars every year to establish 
the kind of schools they want, and which they show they 
must have, no matter what the cost may be. 

This is a protest against the law which must convince 
people that there is something seriously wrong in the law. 
Every child educated in a parochial school is a living pro- 
test against the injustice of our present public-school law. 
There are one million such protests made now in this country 
every day, and the number is increasing rapidly year by year. 

The school question always has been, now is, and 
always will be one of the great questions in American po- 
litical economy. Some time ago the school question with 
us was how to get any public-school system established. 
To-day the school question is how to get the right system 
established ; how to get a public system which shall be 
veaMj public — one which all the public can use ; one of which 
all can approve, one which all can support. 

The objection in the Toledo case was not to compulsory 
education considered in itself, nor to the law for the sup- 
pression of truancy considered in itself. But the State had 
not yet reached that stage where it might properly compel 
Catholic children to attend school because the State had 
no relations with any school which Catholic children could 
in conscience attend. 

I accept the doctrine on the executive power, the po- 
testas coactiva, of both Church and State. ^ Otherwise I 



*See Card. Tarquini, Jur. Eccles. Publici laatitutiones^ pp. 13-15. 



INTRODUCTORY. XUl 

would repudiate the entire system of criminal laWs, penal- 
ties, etc. 

Outside of a case of notoriety of fact, or of law, due 
process of law should precede penal sentence. 

The objection in the Toledo case was that, as the State 
collected money from all citizens for school purposes, it 
was bound to provide schools which all could attend before^ 
it could proceed to punish for non-attendance those who in 
conscience could not attend. If it really found itself unable 
to provide such schools for all, yet showed an honest de- 
sire and effort to do so, the people who were not provided 
for would have recognized the difficulty, and, though they 
saw their money going from them without any return, they 
would have waited with more or less patience until some 
solution of the difficulty could have been found ; but when 
the State showed no effort to provide such schools, and, in 
defiance of law and justice, undertook to compel Catholics 
to attend schools they abhorred, they stood on their parental 
and conscience rights, and appealed to the courts. 



THE CASE. 

The story of that appeal is told in this volume. There 
are two sides to that story — the Catholic side as represented 
by me and my counsel, and the side of the State as rep- 
resented by State counsel and the courts. 

On my side will be found an array of facts, arguments, 
and authorities which must command the respect of every 
honest, intelligent American. 

On the side of the State are the arguments of the Dis- 
trict Attorney, the Attorney-Greneral, and associate counsel. 
It will be noticed that the arguments for counsel for the 
State may be reduced to three : 

I. European States have enacted Compulsory Education 
Laws ; therefore the Ohio law is constitutional. But there 
is no Ohio Constitution in Europe, and a law legitimate in. 



XIV intkojductoky:. 

Europe under their Constitutions might not be warranted 
at all under the Ohio Constitution. 

II. The Ohio law does not compel Catholics to attend 
the public schools. Attendance at a parochial school is ac- 
cepted as sufficient. But if there be no parochial school, then 
the law does compel attendance at the public school ! Now, 
to-day there are in the State of Ohio 526 Catholic churches, 
with only 270 parochial schools ; therefore, there are 256 
congregations now in Ohio in which the Catholics are com- 
pelled by this law to send their children to schools of which 
they cannot in conscience approve. 

III. They say that I was not asked to attend a public 
school. I was asked to merely furnish the name, age, sex, 
and address of the Catholic children in my parish, so that 
the State might deal directly with them. " How could his 
conscience be hurt by that ? " asks the attorney-general. 
When Herod ordered the slaughter of all children of a cer- 
tain age and sex, a priest might reasonably have had conscien- 
tious scruples as to furnishing Herod's officers with the 
name, age, sex, and address of the children of his parish. 
"When the ultimate object of an edict is inadmissible, all 
formal means to the attainment of that object are likewise 
inadmissible. If section 1 of the Ohio act was unconstitu- 
tional, all sections merely in aid of it were likewise null 
and void. 

THE JUDGMENT. 

When a case is brought to the bar of the Supreme Court 
of one of our American States, and is there fully argued by 
counsel on both sides, with citation of authorities, it is the 
almost universal custom for the judges to not only pro- 
nounce a judgment, but to also file a written opinion clearly 
setting forth the reasons why they reject the arguments of 
one side and uphold those of the other. This is the custom 
even in cases of trifling importance. To omit to do it in a 
case of great public importance is an almost unheard of 



IN"TRODUCTORY. XV 

thing. This case was fully heard with oral arguments and 
printed briefs, but the judges of the Ohio Supreme Court 
assigned no reasons for their decision. They simply 
ordered that the judgment of the court below be executed ; 
that I pay the fine and costs, or be committed to prison 
until paid. 

APPEAL. 

This case having been carried through the Ohio courts, 
with the above result, the parties in interest now appeal to 
the American public, and ask their judgment on the ques- 
tion as to whether that power among us called the State has 
or has not the right to compel an American citizen to send 
his child to a school of which he cannot in conscience 
approve. 

^ NOTANDA. 

I. Many have asked why I did not "go upon the 
stand " and fully set forth all the facts which, as far as I 
was concerned, gave rise to this case. 

I answer : My chief object in this litigation was not to 
set forth any particular facts in the case as presented to 
the jury. My object was to contest the constitutionality 
of the Ohio Compulsory Education Law. It was not the 
province of the jury to find as to the constitutionality of 
the law. That was the province of the judges. Hence I 
made no personal effort to influence the jury by a correct 
recital of the facts in the case, but confined myself rather 
to contesting the constitutionality of the law. I will 
mention, however, obiter, that I knew that the jury in this 
case was " a struck jury " from which all Catholics had 
been excluded ; also I mention that the jury in this case 
found that because I was pastor of St. Francis de Sales 
Church, I was therefoije " Principal " of St. Francis de Sales 
Parochial Schools — a finding not in keeping with Canon 



XVI INTRODUCTOKY. 

Law on pastors of Souls. I shall not now stop to discuss 
the proposition that Canon Law is the only proper law to 
determine the professional 5^a^2^s of all ecclesiastical persons, 
qua tales. Nor need I stop to discuss the proposition that 
the constitutions, rules, and usages of our Eeligous teach- 
ing Orders determine their place and powers and duties in 
conducting parochial schools. 

II. It will be noticed that the " arguments " of one of 
the counsel for the State in this case find no place in this 
printed volume. There is good reason for that. I engaged 
a private stenographer to make a private report for me of 
all said and done on this case in court. The stenographer 
delayed beyond the time agreed upon for delivering to me 
his report of the proceedings. After repeated telephone 
messages and even personal visits without satisfaction I 
one day, accompanied by ex-Chief Justice Dunne, called 
upon the stenographer in his office and questioned him as 
to these long delays. The stenograpner there confessed 
that the attorney in question had then in his possession the 
private report of his " arguments," which he had obtained 
clandestinely, and without my knowledge or consent, and 
was revising them. 

When the report was 'delivered to me, both Judge 
Dunne and I found it had been so changed that it could 
not be published as one of the arguments delivered in the 
case in court. So it was left out. 

All the arguments of my counsel in all the courts are 
printed as they were delivered in court in the case, and 
without any revision on the part of my counsel. 

III. I had intended originally to give this volume to 
the reading public at a date much earlier than this ; but 
many reasons, including imperative pastorial duty, serious 
and long-continued illness, etc., made it impossible for me 
up to the present to give the matter the time required. 

P. F. QUIGLEY. 
Feast of The Epiphany, a. d. 1894. 
Toledo, Ohio. 



CONTENTS. 



CHAPTER I. 

IN THE COURT OF COMMON PLEAS, TOLEDO, OHIO. 

PAGE 

Text of the Ohio Compulsory Education Law 1 

Dr. Quigley's Alleged Offence 9 

Copy of Indictment 11 

How Indictment was received in Toledo 14 

Arrest of Dr. Quigley 15 

Trial in the Court of Common Pleas 16 

Charge requested by Judge Dunne 18 

CHAPTER II. 

IN COMMON PLEAS COURT. 
ARGUMENT OP HON. EDMUND P. DUNNE FOR DR. QUIGLEY. 

Statement of Facts 19^ 

Constitution recognizes Inalienable Rights 22 

Hooker on Natural Law 24 

Biblical Confirmations 29 

Patristic Confirmations , 30 

Classic Authors 30 

Other Authorities 32 

The Constitution of Ohio 34 

The Right of Life V. 36 

Political Power in the People 38 

Inalienable Right defined 39 

The Natural Law recognized in Ohio 40 

The Declaration of Independence 42 

Ohio's First Constitution > 43 

The Natural Law recognized 44 

Education a Parental Right by Natural Law 45 

A Right of Any Citizen...., 47 

xvii 



xviii CONTENTS. 

PAGB 

General Compulsory Education 48 

What is Society ? 50 

A Parent's Obligation 54 

Papal Authority on Natural Law 55 

The Duties of Parents 56 

List of Authors on Natural Law 57 

Taparelli 58 

Reviewing the Constitutions 59 

First Ohio Constitution. 61 

Second Ohio Constitution 63 

The Parent's Natural Right 66 

Man's Right to Life 66 

The Source of Civil Power. 69 

The Government of Ohio... 70 

Two Important Questions 74 

Inalienable Rights 77 

^^^^JEducation and Instruction 81 

Parental Right Exclusive 84 

CHAPTER III. 

' IN COMMON PLEAS COURT. 

ARGUMENT OF MR. JASON A. BARBER, FOR THE STATE. 

Meaning of Word " Principal " 88 

About furnishing Blanks 90 

Address to the Jury 91 

Liberty of Conscience respected 92 

John Hancock's Opinion 93 

Dr. Quigley as " Principal *' 95 

Dr. Quigley defied the Law 96 

Father McCarthy's Opinion 97 

Religious Liberty 99 

Glories of English Common Law , 99 

CHAPTER IV. 

IN COMMON PLEAS COURT. 
ARGUMENT OP HON. JAMES M. RITCHIE, FOR DR. QUIGLEY. 

First Objection, Physiological 100 

Law Inoperative by its Own Terms 102 

Lack of Seating Capacity in Toledo Schools 104 

Second Objection 109 

Dr. Quigley not obliged to obey 109 

Dr. Quigley not a ** Principal " ....;..... 110 

Third Objection 114 



CONTENTS. XIX 

PAOB 

Law not in Force at the Time 115 

Dr. Quigley and the " Blanks " 118 

Conclusion 119 

CHAPTER V. 

IN COMMON PLEAS COURT. 
ARGUMENT OF HON. FRANCIS H. HURD, FOB DR. QUIGLEY. 

Introduction 119 

Interference by Legislature unauthorized 119 

Parochial Schools defined , 130 

Obnoxious Sections, Compulsory Law 121 

Law attempts Control of Parochial Schools 125 

Unconstitutionality of such an Attempt 126 

Extent of Legislative Power , 127 

Difference between State and Federal Constitution 127 

People v. Purdy 128 

State v. Frame 128 

Taylor v. Porter 129 

Wilkinson v. Leland (Mr. Justice Story) ; . . 129 

Lafayette, M. & B. R. R. Co., v. Geiger 130 

Leavenworth County v. Miller 131 

BlackstouQ and Puffeudorf on Parental Rights 132 

Chancellor Kent on Parental Rights 133 

Other Aithorities 134 

Lord Keiiyon on Responsibility of Children 137 

Compulsory Education Unknown at Common Law ^ . . . . 139 

First Ohio Constitution on Education . 140 

Origin of the Ohio Common School System 140 

Second Ohio Constitution on Education. 142 

Address to the Jury 145 

Catholics establish Parochial Schools 145 

Dr. Quigley's relation to those Schools 147 

Lack of Seating Capacity in Public Schools 148 

Unjust operation of Compulsory Law 150 

Injustice to the Parent 150 

Injustice to the Child 150 

Injustice to the State 151 

Conclusion • 151 

CHAPTER VI. 

IN COMMON PLEAS COURT. 

Judge Pugsley's Charge • i * 152 

Verdict of the Jury. 167 



XX CONTENTS. 

CHAPTER VII. 

FURTHER IN COMMON PLEAS COURT. 

PAGE 

Opinion of Judge Pugsley denying New Trial 168 

Tlie Court pronounces Sentence on Dr. Quigley 177 

CHAPTER VIII. 

ON APPEAL TO THE CIRCUIT COURT. 
AR&UMENT OF JUDGE DUNNE, FOR DR. QUIGLEY. 

Statement of Case 178 

Review of Judge Pugsley's Decision. 180 

Real Basis of the Law 182 

Some Answers given 182 

The Eucyclical Berum NoDarum 183 

Comments 185 

The State, the Individual, and the Family 187 

The Chinch 190 

Origin of States 191 

The Pagan State 192 

Oriental States "192 

The Christian State 193 

Other States 193 

Distinctions 194 

Separation of Church and State 194 

The Ohio State 195 

Rights of the State 196 

Who shall decide ? 197 

Power of the Courts ' 198 

The Courts the Proper Place for Relief 198 

Compulsory Education is Paternalism 200 

Compulsory Education violates Paternal Rights 201 

Compulsory Education violates Conscience Rights 202 

Compulsory Education violates Personal Liberty 207 

No Good Reason shown for the Law 209 

Fallacies in Arguments for the State 209 

Fallacies about General Welfare 211 

Fallacies about Self-Preservation 212 

Fallacies about Philanthropy 214 

List of Catholic Authorities 216 

Summary, St. Thomas, Unjust Laws do not oblige 221 



CONTEN^TS. xxi 



, CHAPTER IX. 

IN CIRCUIT COURT. 

ARGUMENT OP MR. KURD FOR DR. QUIGLEY. 

PAGE 

Statement of Errors Assigned 224 

First Alleged Error, overruling Demurrer to Indictment 225 

Difference between Parochial and Private Schools 225 

Common Pleas Court had No Jurisdiction 229 

Mitchell V. Brown 232 

Question about Seating Accommodation 241 

Constitutional Construction 243 

The Penalty provided is Unconstitutional 246 

Illinois Case, People v. Turner 250- 

Herbert Spencer cited 253 



CHAPTER X. 

IN CIRCUIT COURT. 
ARGUMENT OF JUDGE RITCHIE FOR DR. QUIGLEY. 

Dr. Quigley not a "Principal " 256 

The Blanks were not furnished in Time 257 

The Question of Seating Capacity 257 

The Question of Penalties 259 

Who to enforce the Law ? 260 

Statutory Construction 264 

Remedial and Penal Statutes contrasted 265 



CHAPTER XI. 

IN CIRCUIT COURT. 
ARGUMENT OF MR. BARBER, FOR THE STATE. 

John Hancock's Opinion 266 

Religious Liberty not infringed 266 

Propriety of Compulsory Education never questioned before 267 

Opinions of Cardinals Manning and Kewman 268 

The Month, of London, on State Rights 269 

A Parochial School is a Private School 271 

"The Struck Jury " Question. 272 

Seating Capacity Question 273 

The Validity of the Indictment 273 

Common Pleas had Jurisdiction - 274 

Dr. Quigley was a " Principal " 277 

Did Father McCarthy swear to a Legal Conclusion ? 278 

Question of Jurisdiction again 279 



XXU CONTENTS. 

PAGE 

Statutory Construction 280 

Conclusion 281 



CHAPTER XII. 

DECISION OF CIRCUIT COURT. 

Opinion by Haynes, J ,.... 283 

CHAPTER XIII. 

IN THE SUPREME COURT, ON APPEAL. 
ARGUMENT OF JUDGE DUNNE FOR DR. QUIGLET. 

Introduction 305 

Statement of Facts 306 

Summary of First Argument : 308 

Summary of Second Argument 309 

Parental Rights 311 

Control of Education 315 

It is the Duty of the Parent to educate 315 

Duty implies Right to control \ 316 

Right to control implies Exclusive Right 316 

State Control of Private Schools Unwarranted 319 

U. S. Senator Vilas on Parental control 319 

.State may aid but not control Education 322 

Extravagant Curriculum of State Schools , 324 

John Stuart Mill v. State Control 325 

Compulsory Physical Education 326 

Gov. Pattison, Pa., vetoes Compulsory Education Bill 326 

Conscience Rights 328 

Definition of Conscieuce Rights ..,.♦... 329 

Von Hammerstein on Parental Rights . . 329 

Catholic Population of U. S 330 

The Baltimore Decrees on Education for Catholics 330 

Education of Youth a Religious Function 331 

-Cardinal Gibbons's Pastoral Letter on Parochial Schools 331 

These Decrees and Pastorals bind Catholic Conscience 333 

Pius IX. prohibits Catholic Attendance at Godless Schools in Ger- 

man}'-. . . . .. . 335 

That Prohibition declared Universal 336 

Bishop Keane, Catholic University, concurs 337 

Reason for this Prohibition 338 

Protestant, Frederic Harrison, of England, concurs 338 

Comments on Harrison's Declaration 339 

Conscience Rights of Quakers respected 340 



CONTENTS. xxiii 

PAGE 

Personal Liberty Rights 342 

Answers to Secular Claims 343 

Self -Preservation : First Answer 343 

Second Answer 344 

The Public Good : First Answer 345 

Second Answer, by Herbert Spencer 346 

Third Answer, by Washington Gladden 345 

Fourth Answer,' by Mr. Spalding, of Massachusetts 347 

Fifth Answer, by Von Puttkamer 348 

Sixth Answer, by Bluntschli 349 

Seventh Answer, by Ahrens. 349 

Eighth Answer, by Dr. Cauer, of Germany 349 

German Experience condemns this Law 350 

List of Authorities 353- 

CHAPTER XIV. 

IN THE SUPREME COURT. 
JUDGE DUNNE REVIEWS PROF. BOUQUILLON'S PAMPHLET. 

Introduction to Review 354 

Prof. Bouquillan's Definilions and Explanations 356 

Prof. Bouquillon's Propositions 358 

Prof. Bouquillon's First Proposition : the State may teach 358 

Prof. Bouquillon's Facts : First Fact of the First Order 359 

Second " " " 359 

Third '" " " 361 

First Fact of the Second Order 363 

Second " ''■ " 363 

Third " " " 364 

Prof. Bouquillon's Authorities: Cardinal Zigliara 364 

Costa-Rosetti 365 

Von Hammerstein. ,. 366 

Father Holaind 367 

Mgr. Sauve , 367 

Mgr. Sauve, as explained by 'Dr. Conway 368 

Taparelli 370 

Cavagnis , ,... 371 

The Schema 371 

Prof. Bouquillon's Errors as to the Schema 373 

Four Condemned Propositions : Syllabus 374 

Theologians' Note, No. 47, to the Schema 374 

Comments on Note 375 

Prof. Bouquillon's Second Proposition: the State may control 379 

Prof. Bouquillon's Citation from Zigliara corrected. 384 

Prof. Bouquillon's Citation from Lucidi explained 385 



XXIV CONTENTS. 

PAGE 

Comments on these Citations 385 

Prof. Bouquillon's Reasoning criticised 388 

Prof. Bouquillon's Syllogism criticised 391 

Error in the Major 391 

First Error in the Minor 392 

Second " " 393 

Third " " 393 

The Syllogism has Four Conclusions , 393 

Objections to the Fourth Conclusion 393 

" Third " 394 

Second " 396 

" First " 396 

A College President's Opinion 397 

Opinion of the Gimltd Caitolica 397 

Comments on these Opinions 397 

Prof. Bouquillon's Possible Meaning. 400 



CHAPTER XV. 

IN THE SUPREME COURT. 
RIGHTS AND DUTIES OP THE STATE IN EDUCATION. 

^^ Judge Dunne's Seventeen Propositions as to Church, State, and Pa- 

rental Rights and Duties in the Matter of Education 404 

Judge Dunue's Comments on these Propositions, showing that a Cer- 
tain Kiud of Compulsion is Permissible in Education, as proved by 
Natural Reason aud admitted by Catholic Authorities, among 
^.^ them Costa-Rosetti, Rickaby, Cathrein, Von Hammerstein, and 

Jansen 408-415 

The Two Opposing Schools, Church and State 416 

Growth of the State School traced : Plato. Aristotle, Machiavelli, Eras- 
tus, De Groot, Hobbes, Rousseau, Schilling, Hegel, Wilhelm III. 
of Germany, and Comments on the Same 416 

CHAPTER XVI, 

IN THE SUPREME COURT. 

JUDGE Dunne's supplemental argument. 

Cimltd Caitolica condemns Prof. Bouquillon's Pamphlet 423 

What Cardinal Manning really said 425 

Bishop Chatard on Prof. Bouquillon's Pamphlet 427 

Bishop Messmer " " " 428 

Prof. Bouquillon's Second Pamphlet, " A Rejoinder to Critics " 430 

Judge Dunne's Comments on the Rejoinder 430 

>. Conclusion of Judge Dunne's Argument 433 



CONTENTS. XXV 



CHAPTER XVII. 

IN THE SUPKEME COURT. 
BRIEF OF THE HON. FRANK H. HURD, FOR DR. QUIGLEY. 

PAGE 

Statement of Points involved. * 435 

Objection to Jurisdiction 436 

Objections to Indictments 439 

Errors at Trial 443 

The Law Unconstitutional 445 

Parochial Schools defined 445 

What the Law demands 446 

Penalties for Refusal 447 

Power of Truant Officer 448 

Powers of Public School Officials 450 

Parental Rights violated 451 

State has not the Right to Educate 451 

Limits of Legislative Power 453 

Rules of Constitutional Construction 454 

Blackstone on Duty of Parents 456 

Puflendorf " " 456 

Chancellor Kent on Parental Rights 457 

Other American Authorities on Parental Rights 457 

No Compulsory Education at Common Law 458 

Ohio Constitutions on Education 458 

Application of Principles to this Case 463 

The Law violates Conscience Rights 464 

The Law Unconstitutional because of its Penalties 464 

CHAPTER XVIII. 

IN THE SUPREME COURT. 
BRIEF OF ATTORNEY- GENERAL OF OHIO FOR THE STATE. 

Statement of the Case 471 

Attorney-General's Four Points 478 

History of Compulsory Education in Ohio. 478 

Compulsory Education in Other States 482 

Constitutionality of the Law 490 

First Point : Parental Rights not infringed 490 

Second Point : Conscience Rights not violated 500 

Third Point : Compulsory Education is Constitutional 501 

Fourth Point : the Penalties are Constitutional .507 

Common Pleas had Jurisdiction 510 

The Indictment was Sufficient 513 



XXVI CONTENTS. 

PAGE 

The Trial was Regular 515 

Conclusion 516 



CHAPTER XIX. > 

IN THE SUPREME COURT. 
ORAL ARGUMENT OF MR. HURD FOR DR. QUIGLE7. 

Argument of Hon. Frank H. Hurd 518 

Statement of Case. 518 

Parochial School defined 530 

>y-How this Law affects Parochial Schools 520 

V^ Assumes Entire Control of them 521 

Thereby abrogates Parental Rights 522 

Puffeudorf on ParentalRights 523 

Burlamaqui on Parental Rights 524 

Question by Judge Dickmau 524 

Cicero on Parental Rights 525 

Another Question by Judge Dickman 525 

Limit of Legislative Power 526 

Question by Mr. Watson, ex-Attorney-General 531 

Mr. Hurd answers Mr. Watson 531 

The Penalties Unconstitutional 532 

Question of Exclusive Jurisdiction 533 

Evil Consequences of the Law , 534 

Right to Trial by Jury 535 

Question by Judge Minshall 536 

Mr. Hurd answers Judge Minshall 536 

Mr. Hurd quotes Herbert Spencer 537 

Character not to be formed by Majority 538 

Formation of Citizens' Character 538 

This Law opposed to Fundamental Principles 539 

CHAPTER XX. 

IN THE SUPREME COURT. 
ORAL ARGUMENT OP MR. BARBER FOR THE STATU. 

Mr. John Hancock's Opinion 540 

Review of Compulsory Education Laws.. , 540 

Scheme of Public Education of Slow Growth , 541 

Principle of Compulsion always Present .* 541 

One of Mr. Hancock's Last Utterances 542 

Importance of the Law 542 

Law does not violate Conscience Rights 543 

State may fix Minimum of Education 543 



CONTENTS. XXVll 

PAGE 

Judge Redfleld opposes Compulsory Education. 544 

Law carefully regards Parental Rights 544 

Power of committiug Magistrates 545 

Other Catholics obey the Law , 546 

Archbishop Ireland advocates State Schools , 547 . 

Extracts from his St. Paul Address , 547 

Dr. Bouquillon denoimces Judge Dunne's Arguments 548 

The Best Part of Judge Dunne's Brief , , 548 

Dr. Bouquillon's Points stated , 548 

The Month favors Compulsory Education 548 

Leo XIII. a Great, Enlightened, and Liberal Mind 548, 

^ Mr. Barber cites Addis and Arnold's Dictionary 549 

■Daniel Webster on State Rights in Education 549 

Mr. Barber's Conclusion. 550 



CHAPTER XXI. 

IN THE SUPREME COURT. 

ARGUMENT OF HON. D. K. WATSON, EX-ATTORNEY-GENERAL, ON BEHALF 

OF THE STATE, 

State Control of Education Necessary 551 

Legislative Power 553 

All Rights of the People are merged into the Constitution 553 

Judge Cooley on Legislative Power 553 

Chief -Justice Denio's Opinion o . . . 553 

Chief-Justice Redfield's Opinion , 554 

Legislature has Authority 555 

CHAPTER XXII. 

IN THE SUPREME COURT. 
ORAL ARGUMENT OF ATTORNEY- GENERAL RICHARDS, FOR THE STATE. 

Asks the Court to read his Printed Brief 559 

Purpose of Ohio Compulsory Education Law 559 

List of States with Compulsory Laws 560 

Compulsory Education in Europe , 560 

Parental Rights not infringed 560 

Various Authorities cited 561 

Conscience Rights not violated , . 561 

Dr. Quigley 's Conscience 563 

Conscience of Catholic Parents 563 

Legislature has Plenary Power „ 563 

" The Most Excellent Pamphlet " of Dr. Bouquillon '. 563 

Conclusion. , 564 



XXYiii CONTENTS. 



CHAPTER XXIII. 

PAGB 

Decision OP Supreme Court 565 



APPENDIX. 

RESOLUTIONS ADOPTED BY VARIOUS CATHOLIC SOCIETIES OF TOLEDO, 
ENDORSING DR. QUIGLEY'S ACTION. 

St. Francis de Sales Branch, Catholic Knights of America 568 

The Young Men's Catholic Benevolent Association 570 

The Uniformed Catholic Knights of Toledo 571 

Sacred Heart Parish 574 

St. Joseph's School Society 576 

The Catholic Knights of St. Peter's Parish 577 

St. Martin's Branch, Catholic Knights of America 578 

The Central Council, C. K. A. of Toledo 579 

St. Peter's Aid Society 580 

St. Vincent de Paul's Society 581 

Congregation of the Good Shepherd 583 

Index. • • 585 



irn tbe Criminal Courts of tbe State of ©bio* 

THE QUIGLEY CASE. 



THE STATE OF OHIO 
vs. 
THE EEV. PATKICK R QUIGLEY, D.D. 



The Rev. Patrick F. Quigley, D.D., a Catholic priest of 
Toledo, Ohio, was arrested, imprisoned, tried and con- 
demned by the State of Ohio for an alleged violation of the 
Compulsory Education Law of the state. 

The text of the law as enacted April 15, 1889, is as fol- 
lows : 

Section 1. Be it enacted by the General Assembly of the 
State of Ohio, That all parents, guardians and other per- 
sons who have care of children shall instruct them, or 
cause them to be instructed, in spelling, reading, writing, 
English grammar, geography and arithmetic, and every 
parent, guardian or other person having control and charge 
of any child between the ages of eight and fourteen years, 
shall be required to send any such child or children to a 
public or private school for a period of not less than twenty 
weeks in city districts in each year, ten weeks of which, at 
least, shall be consecutive, and in village and township dis- 
tricts not less than sixteen weeks in each year, eight of 
which shall be consecutive, unless such child or children 



2 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

are excused from such attendance by the superintendent of 
the public, private or parochial schools in cities, or by 
authority of the board of education in villages and town- 
ships, when it shall have been shown to the satisfaction of 
said superintendent, or said board, that the physical or 
mental condition of such child or children has been such 
as to prevent his, her or their attendance at school, or that 
said child or children are taught at home by some qualified 
person or persons in such branches as are usually taught 
in primary schools. 

Sec. 2. That no child under the age of fourteen years 
shall be employed by any person, company or corporation 
during the school term, and while the public schools are 
in session, unless the parent, guardian or other persons hav- 
ing care of such child, shall be able to give substantial 
proof that he or she has fully complied with the require- 
ments of section 1 of this act, or that such child has com- 
pleted the usual course of primary and grammar grades in 
some public or private school, and such person, company or 
corporation shall demand such proof before giving employ- 
ment to any minor, and shall make a record of said proof 
given, and shall be required, upon the request of the office^L 
(hereinafter provided for), to allow said officer to examine 
the said record, and also the record as provided for in sec- 
tion 6986aa of the Kevised Statutes, and any person, com- 
pany or corporation employing any child contrary to the 
provisions of this act shall be liable to a penalty of fifty 
dollars for each offense, to be recovered in an action for 
debt in any court, or before any justice of the peace having 
jurisdiction, and such action shall be brought in the name 
of the clerk of the board of education. 

Sec. 3. That all minors over the age of fourteen, and 
under sixteen years, who cannot read and write the English 
language, shall be required to attend school at least one 
Lalf of each day, or to attend some evening school organ- 
ized and maintained by the board of education, or to take 
regular private instruction from some person qualified, in 



THE STATE OF OHIO VS, THE REV. PATRICK F. <3>UIGLEY. 3 

the opinion of the superintendent of schools je viities, and 
the clerk of the board of education in villages and town- 
ships to teach such branches until he or she shall obtain 
a certificate from the superintendent of schools in cities 
and the clerk of the board of education in villages and 
townships, certifying that said minor can read at sight and 
write legibly simple sentences in the English language, 
and every person, company or corporation having such 
minor in employment shall be required to exact such 
school attendance from such minor, and be prepared, upon 
demand of the hereinbefore mentioned officer, to furnish 
evidence that such minor does comply with the require- 
ments of this act, and any person, company or corporation 
failing or neglecting to exact such school attendance from 
such minors shall be liable as provided for in section 2 of 
this act ; provided, such person, company or corporation 
shall not have made provisions for the private instruction 
of such minors. 

Sec. 4. That every parent, guardian or other person 
having charge or control of any child under the age of 
sixteen who has been discharged from any business in 
order to be afforded an opportunity to receive instructions 
or schooling, shall send such child to some public or 
private shool until such child shall have acquired such 
instruction as section 3 of this act requires, and in case of 
failure on the part of said parent, guardian or other person 
to comply with the provisions of this section and of section 
1 of this act, unless such child shall have been excused 
from such attendance by the superintendent of public 
schools or the clerk of the board of education in villages 
and townships for reasons stated in section 1 of this act, 
such parent, guardian or other person shall be deemed 
guilty of a misdemeanor, and shall, on conviction, be liable 
to fine of not less than five dollars or not more than twenty 
dollars for the first offense, and not less than twenty for 
each subsequent offense, or to imprisonment for not less 
than one month nor more than three. The said fines, 



4 THE STATE OF OHIO VS. THE HEV. PATRICK F. QUIGLEY. 

wlien paid, to be added to the public scliool funds of such 
school district in which the offense occurs. 

Sec. 5. That all children between the ages of seven and 
fourteen years who are habitual truants from school, or 
while in attendance at any public or private school are 
incorrigible, vicious or immoral in conduct; and all 
children between said ages, and all minors between the 
ages of fourteen and sixteen who cannot read and write 
the English language, who absent themselves habitually 
from school, and habitually wander about the streets and 
public places during school hours, having no business or 
lawful occupation, shall be deemed juvenile disorderly 
persons and subject to the provisions of this act. 

Sec. 6. That in cities of the first and second class the 
board of education of said cities shall be required to em- 
ploy one truant officer to assist in the enforcement of this 
act, said truant officer to be vested with police powers, and 
shall be authorized to enter factories, workshops, stores, 
and all other places where children may be employed, and 
perform such other services as the superintendent of 
schools or the board of education may deem necessary to 
the preservation of the morals and good conduct of school 
children and for the enforcement of this act, and in villages 
and townships the board of education shall be required to 
appoint some constable or other person as truant officer, 
with same power as said officers have in said cities, and the 
compensation of such officers shall be fixed by the board 
of education. 

Sec. 7. That the truant officer shall make daily reports 
to the superintendent of public schools during the school 
term in cities, and to the clerk of the board of education 
as often as the clerk shall require it to be done in villages 
and townships, and he shall also keep a record of his trans- 
actions, subject to the inspection of the members and offi- 
cers of the board of education, and it shall be the duty of 
the clerk of the board of education to provide suitable 
blanks for said truant officer. 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 5 

Sec. 8. That it shall be the duty of all truant officers to 
examine into all cases of truancy when any such comes 
before their notice, or when requested to do so by the su- 
perintendent of public schools, or by the board of educa- 
tion, and to warn such truants, their parents or guardians, 
in writing, of the final consequences of truancy if per- 
sisted in, and also to notify the parent, guardian or other 
person having the charge and control of any juvenile dis- 
orderly person, that the said person is not attending any 
school, and to require said parent, guardian or other per- 
son to cause the said child to attend some recognized school 
•within five days from said notice, and it shall be the duty 
of said parent, guardian or other person having the legal 
charge and control of said child, to cause the attendance of 
said child at some recognized school ; if said parent, guar- 
dian or other person having the legal charge and control 
of said child, shall willfully neglect, fail or refuse to cause 
said child to attend some recognized school, it shall be the 
duty of said officers to make, or to cause to be made, a com- 
plaint against said parent, guardian or other person having 
the legal charge or control of such child, in any court of 
competent jurisdiction in the city, village or township in 
which the offense occurred, for such refusal, failure or 
neglect, and upon conviction thereof said parent, guardian 
or other person, as the case may be, shall be punished by 
a fine of not less than five dollars nor more than twenty 
dollars, or the court may, in its discretion, require persons 
so convicted to give bonds in the penal sum of one hundred 
dollars, with one or more sureties to be approved by said 
court, conditioned that said persons so convicted shall cause 
the child or children under his or her legal charge or con- 
trol to attend some recognized school within ^ye days 
thereafter, and to remain at said school during the term 
prescribed by law ; provided, that if said parent, guardian 
or other person in charge of such child shall prove inability 
to cause said child to attend said recognized school, then 
said parent, guardian or other person shall be discharged, 



6 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

and said court, upon complaint of said truant officer or 
other person, that said child is a juvenile disorderly person, 
as described in section 5 of this act, proceed to hear such 
complaint, and if said court shall determine that said child 
is a juvenile disorderly person within the meaning of this 
act, such child shall be deemed guilty of a misdemeanor, 
and said court shall thereupon sentence said child to some 
juvenile reformatory, or county children's home, until such 
child shall arrive at the age of sixteen years, unless sooner 
discharged by the board of trustees of said reformatory or 
home. Provided, however, that said sentence may be sus- 
pended in the discretion of the court, for such time as the 
child shall regularly attend school and properly deport 
himself or herself. It is further provided that if for any 
cause the parent, guardian or other person having charge 
of any juvenile disorderly person, as defined in this act, 
shall fail to cause such juvenile disorderly person to attend 
said recognized school, then complaint against such juvenile 
disorderly person may be made, heard and tried and de- 
termined in the same manner as provided for in case the 
parent pleads inability to cause said juvenile disorderly 
person to attend said recognized school ; and it is further 
provided, that no child under the age of nine years shall 
"be sent to any juvenile reformatory or children's home 
under the provisions of this act. 

Sec. 9. That it shall be the duty of officers empowered 
or appointed under this act to assist in the enforcement 
thereof, to institute, or cause to be instituted, proceedings 
against any parent, guardian or other person having legal 
control or charge of any child, or corporation violating any 
of the provisions of this act ; provided, that this law shall 
not be operative in any school district where there are not 
sufficient accommodation to seat children compelled to 
attend school under the provisions of this act, and that no 
prosecution shall be instituted against any parent, guardian 
or other person or child in charge of such, unless they have 



THE STATE OF OHIO VS, THE REV. PATBICK F. QUIGLEY. 7 

received due notification from an officer empowered under 
this act that they are acting in violation of this act. 

Sec. 10. When any truant officer shall discover to his 
full satisfaction any child under the age of fourteen years, 
wholly or partially dependent upon his or her own labor 
for a living, or who shall be the support of others unable 
to provide for their own sustenance, or when, in the judg- 
ment of the superintendent of the schools, or of the board 
of education, it may be necessary for such child to con- 
tribute to the support of the family of which he or she is 
a member, it shall be the duty of said truant officer to re- 
port such case to the proper authorities, whose duty it is 
to look after and care for the poor, and to endeavor to 
obtain such relief as may release such child from labor for 
such length of time each year as will be required for com- 
pliance with section 1 of this act, but such child shall not 
be declared a pauper or removed to any infirmary, reforma- 
tory or children's home, unless he or she shall wilfully 
neglect to take advantage of the provisions made by said 
truant officer for his or her relief and instruction, and said 
truant officer failing to obtain such relief, the superinten- 
dent of schools, or the board of education, may make suit- 
able arrangements for the private instruction of such child 
while so adversely conditioned. 

Sec. 11. That it shall be the duty of all principals and 
teachers of all schools, public and private, to report to the 
clerk of the board of education of the city, village or town- 
ship in which schools are situated, the names, ages and 
residence of all pupils in attendance at their schools, 
together with such other facts as said clerk may require, 
in order to facilitate the carrying out of the provisions of 
this act, and the said clerk shall furnish blanks for said 
purpose, and said reports shall be made in the last week of 
September, December, February and April of each year. 

Sec. 12. That when any of the provisions of this act are 
violated by a corporation, proceedings may be had against 
any of its officers or agents of said corporation, who in any 



8 THE STATE OF OHIO VS. THE JlEVvPATRICK F. QUIGLEY. 

way participates iu or are cognizant of such violation by 
tlie corporation of which they are the officers or the agents, 
and said officers or the agents shall be subject to the same 
penalties as individuals similarly offending. 

Sec. 13. Any person or officer mentioned in this act, and 
designated as having certain duties- /to p^rf^i^m in the en- 
forcement of any of. its. proid^ons, neglecting to perform 
any stich* duties, shall bet AufclJ Id-^iihe of not less than 
twenty-five dollars or .'more than fifty dollars foj: each and 
every offense. ^- ' - - * . n * - ^J4 

Sec. 14. Any provision of statutes in force when this act 
takes effect, which conflicts with any provisions of this act, 
shall, to the extent it is inconsistent with the latter, and 
not otherwise, be held to be superseded by this act. The 
provisions of this act shall apply to children entitled under 
existing statutes to attend school at the institutions for the 
education of the blind and the deaf and dumb. Other 
provisions of statutes in force, relating to school affairs, 
shall not be affected by this act ; sections 4023, 4024 and 
4028 of the Revised Statutes are hereby repealed. 



DK QUIGLEY'S ALLEGED OFFENCE. 

Sec. 11 of the said Truant Law makes it the duty of 
certain persons to fill out certain blanks furnished by the 
truant officer, and then to forward the same to the clerk of 
the Board of Education, and this work to be done in Feb- 
ruary, April, September, and December of each year. 

In February, 1890, the truant officer for the city of To- 
ledo left blanks in the schools of St. Francis de Sales Parish 
of Toledo, of which parish Rev. Dr. Quigley is pastor, and 
ordered the teachers to fill and report. Dr. Quigley coun- 
termanded these orders, took possession of the blanks, and 
left further orders with the teachers to exclude the truant 
officer in case he should attempt to invade the schools 
again, and refer him to the pastor. 

In April following the truant officer again sought to in- 
vade the schools for the purpose of leaving blanks as 
before. The teachers informed him of Dr. Quigley's orders 
in the matter, whereupon the officer withdrew. 

The matter then came up for consideration in the Board 
of Education, and was discussed at several meetings of said 
board. 

On May 2, 1890, a communication was received by Dr. 
Quigley, of which the following is a copy : 



\ 



Office Clerk Board of Education, 
High School Building, 
Toledo, Ohio, May 1st, 1890. 
Rev. p. F. Quigley. 

Dear Sir : Enclosed you will find blanks which all 
schools, public and private, are required to fill out for the 
clerk of the Board of Education. This is, as you doubtless 
know, a requirement of the State law passed one year ago. 

9 



10 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY, 

I mail you a report of the public schools of this city. 
ii it you will find a copy of the Compulsory Education Law, 
which may be useful to you for reference purposes. 

Please fill these blanks and some one will call at your 
school for them in the course of a week. 

Yours very truly, 

H. W. COMPTON, 
Tper K. 

Glh Bd. of Education, 

Dr. Quigley took no notice of the above communication, 
whereupon the Board of Education, after several weeks' 
consideration, finally brought the matter before the Grand 
Jury of Lucas County, which^ on June 10, 1890, presented 
a bill of indictment in the matter. 



THE INDICTMENT. 

The following is a copy of the indictment: 

The State of Ohio, ) ^^ . 
Lucas County. f * 

The Court of Common Pleas of Lucas County, Ohio, of 
the term of April, in the year of our Lord one thousand 
eight hundred and ninety. 

The jurors of the Grand Jury of the County of Lucas, 
and of the State of Ohio, impanelled, sworn, and charged 
to inquire of offences committed within said County of 
Lucas, on their oaths and affirmations, in the name and by 
the authority of the State of Ohio, do present and find that 
at the City of Toledo, in the County of Lucas, one Patrick 
F. Quigley was during all of the last week of the month of 
April,, 1890, and ever since has been, principal and teacher 
of, and in, a certain school, which said school was for a 
long time prior to said last week in April, and during all 
of said last week in April continuously held and kept open 
for the attendance of, and was attended by, pupils under 
the age of fourteen years and of the age of eight years and 
over in the City of Toledo, in said County and State, said 
City of Toledo being and comprising what is known as a 
City School District, and having therein a regularly organ- 
ized Board of Education, of which said Board of Educa- 
tion one Harvey W. Compton was during all of said last 
week of April, 1890, and ever since has been, the duly quali- 
fied clerk ; and that said Patrick F. Quigley, as such prin- 
cipal and teacher, was and is a person mentioned and desig- 
nated as having certain duties to perform in the enforce- 
ment of the provisions of an act of the Legislature of Ohio, 

11 



12 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

passed April 25th, 1890, entitled " An Act to compel chil- 
dren under fourteen (14) years of age to attend school a 
certain length of time each year " ; and that as such prin- 
cipal and teacher, it became and was the duty of said 
Patrick F. Quigley to report to the said clerk of the said 
Board of Education the names, ages, and residence of all 
pupils in attendance at his said school, together with such 
other facts as were required by said clerk ; and that said 
Harvey W. Compton, clerk as aforesaid, as provided and 
directed by law, a long time, to-wit, many days before 
the expiration of the said last week in April 1890, provided 
for and furnished to the said Patrick F. Quigley, blanks 
properly ruled for the making out of the report to be made 
to said clerk in the last week in April in said year, as pro- 
vided by law, of the names, ages, and residence of all the 
pupils in attendance at said school of which the said Patrick 
F. Quigley was principal and teacher as aforesaid ; and 
that the said Patrick F. Quigley did unlawfully, knowingly, 
and wilfully neglect and refuse during all of the said last 
week in April, and ever since has neglected and refused, 
and still neglects and refuses, to report to the said Clerk 
of said Board of Education of said City, the names, ages, 
and residence of all the pupils in attendance upon his said 
school, or any of the names, ages, and residence of any 
pupils of said school. 

Contrary to the statute in such case made and provided, 
and against the peace and dignity of the State of Ohio, 
James H. Southard, 

Pros. AtVy of Lucas County. 

Upon which bill of indictment appears an indorsement, 
of which the following is a copy : 

No. 2819. Lucas County Common Pleas. The State 
of Ohio vs. Patrick F. Quigley. Indictment for refusing 
and neglecting to make report to the Clerk of the Board of 
Education of the names, ages and residence of pupils 



THE STATE OF OHIO VS. THE REV. PATEICK F. QUIGLEY. 13 

attending school. A True Bill. Found upon the testimony 
of witnesses sworn and sent before the Grand Jury at the 
request of the foreman thereof. 

Chas. H. Hall, 
Filed June 10, 1890. Foreman of the Grand Jury, 

I hereby certify the within to be a true and correct 
copy of the original indictment. 

J. P. Bronson, Clk, 

By E. E. Breed, Bpty, 



HOW THE INDICTMENT WAS RECEIVED 
IN TOLEDO. 

The institution of this prosecution by the State created 
a profound impression in Toledo, and the matter was 
widely commented on by press and people. Eleven Catho- 
lic societies in Toledo met and passed various resolutions 
setting forth the Catholic doctrine on education, denouncing 
the Ohio compulsory education law as an invasion of the 
parental and conscience rights of the citizens of this state 
guaranteed to them by their state constitution ; approving 
of the action of Dr. Quigley in resisting the law, and pledg- 
ing him their sympathy and support. For a full report of 
these resolutions see " Appendix No. 1." 

14 



ARREST OF DR. QUIGLEY. 

The indictment of Dr. Quigley was prestmted by the 
Grand Jury on June 10, 1890. Several quasi official invi- 
tations were conveyed to Dr. Quigley expressing the hope 
that, waiving arrest, he would voluntarily present himself 
at court and give his own recognizance to appear at the 
next term of court to answer the indictment, but tl^e 
Doctor declined, saying he would in no way recognize the 
validity of any of the proceedings, and had no desire ta 
make the law appear less odious than it is in reality. 

On June 26, the Sheriff of Lucas County came to the 
residence of Dr. Quigley, took him into custody, and by 
force brought him to the Court House. Some friends 
having given bail for his appearance at the next term of 
court, the Doctor was set at liberty. 

t5 



THE TKIAL IN THE COUET OF FIRST 
INSTANCE. 

In tlie Court of Common Pleas, in the City 
of Toledo, in the County of Lucas, in the 
State of Ohio. 



THE STATE OF OHIO 



PATRICK F. QUIGLEY. 



No. 2918 of the Criminal 
Docket. 



The trial came on upon the 7th day of May, of the 
April term, 1891, before the Hon. Isaac P. Pugsley and a 
Jury. 

Jason A. Barber, the State's attorney in and for Lucas 
County, conducted the prosecution on behalf of the State. 

For the defendant there appeared Hon. Edmund F. 
Dunne, ex-chief justice of Arizona ; Hon. Frank H. Hurd, 
ex-member U. S. Congress ; Hon. James M. Ritchie, ex- 
member XJ. S. Congress. 

OPENING OF THE CASE. 

Mr. Hurd offered a motion to dismiss the case for lack 
of jurisdiction. Court decided jury should be impanelled 
first. Defendant's challenge to the array overruled. 
Formal peremptory challenge to Mr. Bassett overruled. 

16 



THE STATE OE OHIO VS. THE REV. PATRICK F. QUIGLEY. 17 

Motion to dismiss then made and overruled by the 
court. The prosecution, by Mr. Barber, opened the case 
to the jury, and at 12 m. recess till 2 p.m. 

Afteenoon Session. 

At 2 P.M. the State began, and in support of its charge 
produced and examined witnesses Harvey W. Compton, 
superintendent of Toledo city schools and clerk of the Toledo 
Board of Education ; John J. Eochford, an ex-teacher in St. 
Francis de Sales school, but at this time bookkeeper in the 
city auditor's office ; Sister Mary Berchmanns, Sister Mary 
Liguori (teachers in St. Francis de Sales schools) ; John E. 
Disher, State truant officer for the city of Toledo ; and 
with the examination of these the State rested, in chief. 

Defendant produced and examined M. J. Cooney, John J, 
Murphy, Austin, L. D'Alton, John E. McCaffery, and James 
A. Dailey, councilmen of St. Francis de Sales parish ; also 
Kev. Louis Kramer, S.J., and Harvey W. Compton. 

The State in rebuttal called Eev. T. P. McCarthy, 
Catholic priest of Toledo, to prove by him that the relation 
of a parish priest to his parochial school was that of prin- 
cipal of the school, and rested as to witnesses. A number 
of exhibits were then admitted, showing character and 
management of Catholic parochial schools. 

The witnesses of the State were examined to prove the ex- 
istence of St. Francis de Sales school ; that Dr. Quigiey was 
virtually principal thereof, as contemplated in the Educa- 
tion Law ; that proper blanks were properly served on him, 
and that he didtiot make report as required. ■ The witnesses 
for the defendant were introduced to show that the Compul- 
sory Education Jjaw could not be properly enforced, for that, 
among other things. Catholic children could not attend the 
public schools, and that there was no room for them in the 
city schools even if they were willing to attend. 



18 THE STATE OF OHIO VS, THE REV. PATEICK F. QUIGLEY. 



CHAEGE ASKED. 

The evidence being all in, the defendant, by the Hon. 
Edmund F. Dunne of his counsel, requested the Court to 
give to the jury the following charge : 

Gentlemen of the Jury : The Court instructs you as 
matter of law : 

1. .That the Legislature of the State of Ohio had no 
authority to enact those portions of the law commonly 
known as the Compulsory Education Law, approved April 
15, 1889, more accurately described as an act " To compel 
children under fourteen years of age to attend school a cer- 
tain length of time each year," approved April 15, 1889, or 
of the various acts amendatory of and supplemental thereto, 
which make the attendance of children at school compulsory 
under penalties upon the children or their parents, guar- 
dians, or other persons having them in charge in case of 
failure of such attendance on thfe part of said children, as 
well as those portions which relate and prescribe what 
amount of instruction in secular knowledge children of 
school age shall receive, such legislation being contrary to 
the provisions of the constitution now in force in this State 
as the organic law thereof. 

2. That the sections of said act or acts, under which it is 
sought to base the prosecution in this case, being dependent 
upon and necessarily connected with and only in further- 
ance of the end contemplated in said other portions of the 
act as above described, necessarily fall with those portions. 

3. That there is no other law than that above described, 
warranting this prosecution. "Wherefore you will in this 
case return a verdict of not guilty. 

And thereupon Judge Dunne addressed the Court as 
follows ; 



THE FIRST ARGUMENT. 

On the 8th day of May, A.D. 1891, in the 
Court of Common Pleas in and for the County 
of Lucas, State of Ohio, U. S. A., held in the 
City of Toledo, Pugsley, J. 



THE STATE OF OHIO 

vs. 

THE EEY. PATRICK F. QUIGLEY, D.D. 



AEGUMENT OF EDMUND F. DUNNE, 

of Counsel for Defendant. 

If your honor please : We have here a case of unusual 
importance ; one that raises the question as to what are 
the rights, powers, and duties of the state in the matter of 
the education of children and youth, as also what are the 
rights, privileges, and immunities of the parents in the 
same matter. For the better understanding of the points 
at issue, I will make a little recapitulation of facts in the 
case so far as the same concern the argument I am about 
to make. 

Statement of Facts. 

On the 15th of April, 1889, the legislature of the state 
of Ohio, for the first time in its history, enacted a law 
known as the compulsory education law. This law under- 

19 



20 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

takes to compel all parents, guardians, or other persons 
having control and charge of children between the ages of 
eight and fourteen years to* cause them to be instructed in 
spelling, reading, writing, English grammar, geography, and 
arithmetic, and to that end to send such child to some pub- 
lic or private school for twenty weeks in each year in cities 
and sixteen weeks in other places, ten of which in the first 
case and eight in the second shall be consecutive, subject 
tq certain excuses in certain cases for sickness, or where 
the child is taught at home " by some qualified person or 
persons, in such branches as are usually taught in primary 
schools." 

Certain sections of this law provide for the arrest of 
truant children between the ages of eight and fourteen 
found in the streets, and the returning of them to the school 
to which they belong. To aid in finding to what school 
such truants belong other sections of the law require the 
principals and teachers of all schools, public and private, 
to report four times a year to the clerk of the board of 
education the names, ages, and residence of all attendants 
at their schools. 

In the last week of April, 1890, and prior and subse- 
quent thereto, the defendant herein was and still is the 
rector of St. Francis de Sales parish, in the city of Toledo, 
O., and during the time of said rectorate there were and 
still are six parochial schools for the children of said parish. 

On the 10th day of June, 1890, the grand jury of said 
Lucas county presented a bill of indictment, charging : 

1. That defendant during the last week of April, 1890, 
was principal and teacher in a school in the city of To- 
ledo, O. 

2. That in said last week of April, 1890, he was provided^ 
with blanks on which to make certain reports to the public 
school ofiicers of said county, as required by said law. 

3. That it was his duty to make such reports. 

4. That he failed, neglected, and refused so to do, con- 
trary to the statute in such case made and provided, etc. 



THE STATE OP OHIO VS. THE REV. PATEICK E. QUIGLEY. 21 

Wherefore, on June 26, 1890, defendant was arrested by 
the sheriff of said Lucas county, and by the court aforesaid 
was held to answer said charge. 

After various delays the case came on for trial on the 
7th day of May, a.d. 1891. 

As to the first charge the defendant denies that he was 
or is a principal and teacher of any school in Toledo. 

As to the second, denies that the blanks were furnished 
as charged. 

As to the third, denies that the state has any power to 
compel him to make reports, for the reasons : 

1. That the law does not apply to parochial schools. 

2. Thaf he never agreed to render the service and can- 
not be compelled to involuntary servitude, even were com- 
pensation offered, and none was offered or provided for by 
law. 

3. That he is not an officer of said state, county, or 
city, or under obligations to render such service. 

4. That the law is unconstitutional, because not author- 
ized by the constitution. 

5. That the law is unconstitutional, because forbidden 
by the constitution. 

The said fifth objection is brought before the court upon 
application to have the jury instructed that the legislature 
had no power to enact such a law. 

I. Argument. 

May it please the court : In the remarks I am about 
to offer in behalf of the defence in this case, my purpose is 
to confine myself to the fifth objection of defendant, that 
the law in question is unconstitutional, because forbidden 
by the constitution. 

The law in question is based upon the assumption that 
the state has a right to compel parents to give a certain 
amount of secular instruction to their children, and that 
the state may by general law prescribe the nature of such 



22 THE STATE OF OHIO VS. THE EEV. PATKICK F. QUIGLEY. 

instruction, tlie time of the year when it shall be given, at 
what age the child shall begin to receive it, and the num- 
ber of years during which the instruction shall be con- 
tinued. 

We claim that the state has no such right. I hope I 
may be able to show exactly what it is we claim in this 
matter. We do not claim that the state has no right to act 
in the matter of education. I do not consider that this 
case raises any question as to the right or non-right of the 
state to establish a public school system ; or its right to 
encourage schools, and the means of instruction, or whether 
one system of education is better or less good than another ; 
or whether one people have performed their duty in the 
matter of education more or less faithfully than another, 
or any similar questions. I am quite willing, however, that 
the discussion as to .these matters shall take as wide a 
range as the court may choose to permit, but I hope to set 
no Is^ad example in going outside the record in the remarks 
I am about to make, and if I should unwittingly do so, I 
beg to be corrected. 



What the Constitution Foebids. 

I claim that the state has no right to control the educa- 
tion of the child, against the wishes of the parent, for that 
to the parent alone belongs the right to control the educa- 
tion of his children ; that this is an inherent and inalienable 
right under and by virtue of the natural law, and that the 
legislature of this state is forbidden by the Constitution of 
Ohio to infringe upon, impair or in any way deny or defeat 
any inherent natural rights possessed by the people of this 
state, except as specially permitted in the constitution. 

Our people are so jealous of their liberties, that when 
they meet in convention to adopt a constitution for state 
government, one of the first things they do is to set forth 
what they call a " bill of rights," or declaration of certain 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 23 

rights possessed by the people which no power on earth 
must ever attempt to deny. 

We have a "bill of rights," in Ohio. Section 1 of that 
bill reads : 

"All men are by nature free and independent, and have 
certain inalienable rights, among which are those of enjoy- 
ing and defending life and liberty, acquiring, possessing 
and protecting property, and seeking and obtaining happi- 
ness and safety." 

Your honor will notice that the enumerated rights set 
forth in said section 1 are not set forth as the complete list 
of the declared inalienable right, but are merely mentioned 
as being some of the rights, or "among" the rights referred 
to, or as being associated with or making part of the num- 
ber, as being in the number or class of rights spoken of. 

This is further evidenced by the fact that the bill of 

rights goes on through eighteen sections more, defining 

and declaring certain other rights, some of which it declares 

to be "inalienable," others "inherent," others "inviolate," 

others "natural," and others "indefeasible," all of these 

words meaning the same thing, that the rights so described 

are natural rights, rights which men have by reason of the 

natural law. The full supremacy of the natural law is 

further recognized by the 20th and final section of the bill 

of rights in these words : 

" ' Section 20. This enumeration of riejhts shall not be 1 

i 
considered to impair or deny others retained by the people, | 

and all powers not herein delegated remain with the | 

people.' " 

The Theory Accepted. 

For a long time in the history of the state of Ohio, the 
theory was accepted by the courts that the legislature had 
only such legislative powers as were specially delegated to 
it by the constitution. Under that theory there is clearly 
no warrant for this compulsory education law. 



24 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGL-EY. 

Lately a theory lias been advanced that the legislature 
of the state of Ohio has full legislative power, except 
where distinctly prohibited by the constitution. It is then 
claimed that there is no prohibition in the constitution as 
to this law in express terms, and that therefore its enact- 
ment was legitimate. 

I wish now, if your honor please, to show that this 
legislation is prohibited by the Ohio constitution, if not in 
express terms as to this particular right, still in terms ex- 
pressed with sufficient comprehensiveness to include this 
right. 

I find til at prohibition in the bill of rights, w^hich vir- 
tually declares that the natural law is supreme, and that 
all rights existing by virtue of the natural law are inherent, 
indefeasible, inalienable, and inviolate ; therefore that they 
cannot be violated, aliened, or defeated by any act of the 
legislature, or by any human authority in the state of Ohio 
or elsewhere, except as specially provided for in the con- 
stitution. 

As the judges of our courts are sworn to support the 
constitution, they are as much bound to enforce and pro- 
tect all personal civil rights existing under the natural 
law, as they are to protect those rights which exist under 
the statute law. 

"What is this Natueal Law? 

The natural law is the law of God ; the law of the 
Creator of heaven and earth, and all existences therein ; 
the law which the Creator imposed upon the existences 
created by Him ; the law which governs their being ; the 
law which by the very nature of their being it is necessary 
they should have and observe in order to properly fulfil 
the object of their creation. 

I am going to cite here, as applicable to this case, certain 
parts of this law of God. I am not obliged to prove here 
that God exists, and that His law must be received as 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 25 

authority here. " This court will take judicial notice of the 
existence of God, and the paramount authority of His law. 
This court is bound to take judicial notice of the constitu- 
tion of the state of Ohio, and to give full force and effect 
to all principles recognized and accepted by that constitu- 
tion. The constitution recognizes the existence of Almighty 
God (Art. 1, Sec. 7). It recognizes also the paramount 
authority of His law (Art. 1, Sees. 1 to 20). 

In the little village of Boscombe, about six miles from 
Salisbury, away back in 1591, now just 300 years ago, lived 
Eichard Hooker, a minister of the Church of England. He 
was a man of very small stature physically ; of very deli- 
cate frame ; of poor health ; of almost angelic purity of 
life, and living life only for the noblest purposes, yet so 
modest in mind and so shy in manner that he could hardly 
bear to meet the glance of his fellow-men, yet is his 
memory ever cherished with affection by lawyers, for he is 
the one man of English-speaking countries who has perhaps 
written most lovingly, learnedly, and eloquently of the noble 
science of law. When his work on Ecclesiastical Polity 
was presented to the Holy Father at Eome, the fact that 
he was a Protestant minister may have prejudiced its re- 
ception somewhat at first, but, after reading it, the Holy 
Father exclaimed with enthusiasm : " Here is a man who 
knows how to write books." 

In the second chapter of his book on Ecclesiastical 
Polity he comes to treat of this question of natural law, 
and, approaching it, he says : 

" All things that are have some operation not violent 
or casuaL Neither doth anything ever begin to exercise 
the same without some preconceived end for which it work- 
eth. And the end which it worketh for is not obtained 
unless the work be also fit to obtain it by. For unto every 
end every operation will not serve. That which doth 
assign unto each thing the kind, that which doth moderate 
the force and power, that which doth appoint the form and 
measure of working the same we term a law. So that no 



26 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

certain end could ever be attained unless the actions 
whereby it is attained were regular, that is to say, made 
suitable, fit, and correspondent with their end by some 
canon, rule, or law. Which thing doth first take place in 
the works even of God Himself. All things, therefore, do 
work after a sort according to law. The Lord has made 
all things for His own sake. Not that anything is made to 
be beneficial to Him, but all things for Him to show bene- 
ficence and grace in them. . . . And whatsoever is done 
with counsel or wise resolution hath, of necessity, some 
reason why it should be done, albeit that reason be to us 
in some things so secret that it forceth the wit of man to 
stand as the blessed Apostle doth, amazed thereat. . . . 
That law eternal which God Himself hath made to Himself, 
and thereby worketh all things of which He is the cause 
and authority, that law which is the admirable frame 
whereof shineth with most perfect beauty the countenance 
of that wisdom which hath testified concerning herself, 
* The Lord possessed me in the beginning of His way, even 
before His works of old I was set up,' that law which hath 
been the pattern to make, and is the card to guide the 
world by, . . . how should men or angels be able to per- 
fectly behold ? " 

The Laws Eternal. 

That law by which God Himself works, Hooker calls 
the first law eternal ; the law which God imposes upon the 
objects which He has created. Hooker calls the second law 
eternal, and then goes on to say : 

*' All things, therefore, which are as they ought to be, are 
conformed unto this second law eternal, and even those 
things which to this second law are not conformable, are, 
notwithstanding, in some sort, ordered by the first eternal 
law." 

He also explains that this second law eternal " Eeceiveth 
according unto the different kind of things which are sub- 



THE STATE OF OHIO VS. THE EEV. PATEICK F. QUIGLEY. 27 

jected -unto it different and sundry kinds of names." He 
then goes on to make his classification of the different kinds 
of creations, and the different names by which the law which 
governs them is called. Not exactly following his classifi- 
cations, I will remark that there is the creation of unor- 
ganized matter — earth, air, electricity, and other things that 
as yet we know not of. The next higher creation is the 
vegetable world, where we find matter and the principle of 
life, but without sensation. The next higher is the brute 
creation, with matter, life, and sensation. The next higher 
is man, where we find matter, life, sensation, and reason. 
The next higher, in a certain sense, is woman, where we 
find matter, life, sensation, reason, and seemingly a share of 
the angelic intuition. The next higher is the angelic, the 
principal distinguishing characteristic of which is intuition. 



The Natural Law. 

There is then the natural law as to the unorganized 
matter ; the natural law as to the vegetable world ; the 
natural law as to the brute creation ; the natural law as to 
the human creation, and the natural law as to the angelic 
creation. 

As to the latter. Hooker says : " Touching angels (which 
are spirits immaterial and intellectual, the glorious inhabi- 
tants of those sacred palaces where nothing but light and 
blessed immortality, no shadow of matter for tears, discon- 
tentments, griefs, and uncomfortable passions to work upon, 
but all joy, tranquillity, and peace, even forever and ever 
doth dwell), as in number and order they are huge, mighty, 
and royal armies so likewise in perfection of obedience to 
that law which the Highest, whom they adore, love,, and 
imitate, hath imposed upon them, such observants they are 
thereof, that our Saviour Himself, being to set down the 
perfect idea of that which we are to pray and wish for on 
earth, did not teach us to pray or wish for more than only 



28 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

that here it miglit be with us, as with them it is in 
heaven." 

" Our Father Who art in heaven, hallowed be Thy name ; 
Thy kingdom come ; Thy will be done, on earth as it is in 
heaven." 

Each one of these creations has distinctly a nature of 
its own, and therefore a law of its own, and, for it, that law 
is its natural law, but when I how hereafter in this argu- 
ment use the term natural law, without other qualification, 
I wish to be understood as speaking of the natural law, 
only as it relates to the human creation. 

Our own writers recognize the authority of natural law. 

One of our great American authorities is Sedgwick on 
the measure of damages. He has also given us a treatise 
on constitutional law. 

The first words of the first chapter of the latter book 
are as follows : 

" Man, in whatever situation he may be placed, finds 
himself under control of rules of action emanating from 
an authority to which he is compelled to bow — in other 
words, of law. The moment that he comes into existence 
he is the subject of the will of God, as declared in what we 
term the laws of nature. As soon as he enters society he 
finds himself controlled by the moral law, . . . and also by 
the municipal or civil law. . . „ The two great sources of 
municipal or civil law are : Custom and positive enact- 
ment." 

He further shows that even customs arose from an 
application of the principles of natural law, and for this 
cites Forti, an Italian authority, as follows (p. 3) : " In the 
infancy of human society, as writing is little used and 
afiairs are not yet complicated, differences are adjusted 
rather according to notions of natural right than statutory 
enactment." He says Forti is a nephew of Sismondi, the 
historian, and that in the domain of law he is one of the 
most eminent instances of the inextinguishable genius of 
his unhappy country. 






the state of ohio vs. the rev. patrick f. quigley. 29 

Universal Authorities. 

As natural law is universal and eternal, we may expect 
to find autliorities upon it among the writers of every 
nation ; and for the highest authorities we would naturally 
expect to go to the oldest and most intelligent nations. I 
shall have occasion to follow hereafter the example set me 
by our American author in referring to European authori- 
ties upon this subject. 

The first author I have cited here was a minister of the 
Church of England. There is a special reason why the 
declarations of churchmen with regard to natural law 
should be received as authority, and that is, because it is 
their specialty. It is the science to which they devote the 
study of their lives. The natural law is a code prescribing 
the proper line of moral conduct. They have to know the 
law as to immorality. Immorality consists as much in lies, 
theft, robbery, treason, and other wrong-doing as in viola- 
tion of other commandments ; and a churchman, to be able 
to properly discharge his ofiice, needs to know the rights 
of a statv. and the duties of a citizen as much as to know 
the rights of a husband and the duties of a wife ; therefore, 
the declarations of learned divines in the matter of rights 
and duties under the natural law, tven as to civil matters, 
are of necessity received as being worthy of particular 
consideration and respect. And the greater the ability of 
the writer, and the more serious thi responsibility under 
which he writes, the greater, of course, the consideration 
with which his declarations will be received. 

The natural law was implanted in the heart of man at 
the moment of his endowment with reason, and remains 
there forever ; and because of this reason and the natural 
impulse given him by his Creator, he always knows, at 
least in a general way, what this law requires, and always 
has at least some disposition to fulfil those requirements. 

The great St. Paul spoke of this in his Epistle to the 
Eomans, chapter ii., verses 14 and 15 : 



30 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

" (14) For when the Gentiles who have not the law do 
by nature those things that are of the law, these, not hav- 
ing the law, are a law to themselves. 

"(15) Who show the words of the law written in their 
hearts, their conscience bearing witness to them, and their 
thoughts within themselves accusing them, or else defend- 
ing them." 

The Patristic Confirmations. 

There is also the patristic confirmation. St. Augustine 
says : " The hand of our Creator has written this truth on 
our hearts : That which you would not that others do to 
you, do 3^e it not unto them. . . . Look into your own hearts, 
you unbelievers. Who has taught you to not consent that 
another should approach your wife? Who has taught 
you to not tolerate injustice ? . » . Is theft a good ? You 
answer. No. Is adultery a good ? All cry out. No. As- 
sassination — is that a good? All declare they bold it in 
horror. Coveting the property of another- — is that a good ? 
No. All answer as to these things as with one voice." Y. 
Enarrat in Ps. 57 c. ; Confess. 11, 4 ; Cone. 1 in Ps. 58 ; de 
Libero Arbitrio 1, 6. See also Origen, Explau. in Ep. ad 
Rom. 1, 1., 2 ; Tertullian, Lib. de Testim. Anim. Adv. Gent. 
Contra Marc. (Y. de Coron. c. b.) ; St. Ambrose, Epist. 5, 
41 ; St. Jerome, Epist. 151 (121) ad Algasiam, quaest. 8 ; 
Comment in. c. L Ep, ad Galat. ; St. Basil, Hom. Ix., in 
Hexaem; St. Chrysostom, Hom. xii., ad Popul. ; Theo- 
doret, Serm. vii., de Graces Affectionibus Curand. ; St. 
Prosper, Com. de Provd. Dei. 

The above as cited by Wetzen & Welte, Encyc. TJieo. 
Cath., article Natural Law. 

Classic Authors. 

There is also the confirmation of the classic authors. 
Cicero said : " The wisest men agree that law is not an in- 



k 



THE STATE OE OHIO VS. THE EEY. PATEICK E. QUIGLEY. 31 

vention of tlie liuman mind ; that it is not the result of a 
popular convention or a general agreement among men, 
but that it is something eternal, which governs the world 
by the wisdom of its commands and its prohibitions. 
They declare that the supreme, sovereign law proceeds 
from the Divinity, which intelligently ordains all things. 
As for the positive enactment by states, there is in them 
no force impelling us to do good or turning us from eviL 
This power is not only older than the history of all peoples 
and of all states, but it is contemporary with the Divinity 
which preserves and controls heaven and earth ; for we 
cannot conceive the divine power existing without reason, 
and the divine reason has necessarily the power to deter- 
mine what is good and what is evil. Although there was 
no law anywhere written requiring one man to oppose 
himself to an army, place himself at a bridge and cause it 
to be cut down behind him, still we do not the less believe 
that Horatio performed an act in conformity with the laws 
of gallant bravery ; and although under Tarquin there was 
no written law as to honor, Sextus did not the less violate 
Lucretia, outraging thus the eternal laws of honor. For 
there is a law, born of the very nature of things, which 
urges to justice and forbids crime ; a law which not only 
began to be law the moment it was written, but which was 
law from the time it began, and which began with the very 
being of God " (Cic. de Legib. 1-6, or, pro Milone c. la.). 

Cicero further said : *' Sound reason is a veritable law 
fully consonant with the nature of man. All possess.it. 
It is consistent, immutable. It prompts to the perform- 
ance of duty by its commands ; it turns us from evil b}^ its 
prohibitions. It ordains and interdicts with an authority 
as absolute for the just, as impotent for the wicked. Noth- 
ing can be changed in this law ; neither in modifying its 
details, nor in limiting its reach, nor in trying to abolish 
it altogether. Neither the senate or the people can free 
us from its commands, and to understand it we need no 
other interpreter than our own reason. It is not one thing 



3$i THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 

at Rome and different at Athens ; one thing to-day and an- 
other later. All people in all time are bound by this eter- 
nal and immutable law. It has but one supreme ordainer, 
one sovereign legislator, God, Who is its author, custodian, 
and judge." 

Similar declarations may be found in the writings of 
the Greek and other Roman philosophers. 

Cf. Socrates, Memor., Xenoph. 1, 4 ; Plato, De legib., 1. 
p. 4, ed. Bip.; Aristotle, Pont., v. 17 ; Sophocles Antig., v. 
455-457, 863-872 ; Seneca, Ep. 124; De Benef., iv. 17 ; Epic- 
tetus ; Demosthenes, Orat. 1 ; Contra Aristogeton. 

The above as cited W. & W. Encyc, 1. c. 



Othee Autpioeities. 

A modern German writer declares : " The knowledge of 
the natural law as of absolute obligation, is so inherent in 
the human conscience that if we found it entirely lacking 
in any person we would question the completeness of his 
nature. But it is never entirely lacking. This is a far 
reaching fact ; it is a wonderful proof of the original nobil- 
ity of human nature, which, however profound may be the 
depths into which it is plunged by sin, retains alwaj^s some 
gleam of the light of ideal truth, some remnant of the 
primitive knowledge of man. This law also reveals itself 
in a practical manner as an objective force in history, for 
all order and law in the family, the state and among men, 
has for its foundation and only basis the unchangeable text 
of this eternal law. This objective force of the natural law 
operates in every individual upon his entrance into this 
world, and forever constrains him in a greater or less de- 
gree to recognize its authority and accept its control," 
(Muller, Christian Doctrine of Sin. Vol, 1, p. 45, third 
edition.) 

I began this part of my remarks by citing an American 
authority, to show that our law proceeds originally from 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 33 

God. I will now cite another American authority to the 
same effect. 

Judge Potter, of the supreme court of the state of New 
York, in his edition of Dwarris on Statutes (page 45), says : 

*'In England, Parliament is recognized as possessing 
the sovereign power of the country. The American Legis- 
lature possesses but a portion of the sovereign power. 
The sovereignty is in the people, and the legislatures whom 
they create can only discharge a trust guarded with restrict 
tions, well defined, of which the people have made them 
the depository. When, in a republican or other form of 
government, it is asserted that the natural and necessary 
source of civil authority is in the people, it is intended that 
this is so until the government has been formed : for, be* 
fore the formation of a government it cannot be said that 
the people have political rights. So that primarily it may 
be asserted that sovereignty resides in God Himself, Who 
is the source of all power, right, and authority. ' By Me 
kings reign and princes decree justice ' (1 Prov., 8, 15), and 
St. Paul instructs that * there is no power but from God, 
that the powers that be are ordained by God' (2 Eom., 13, 
1). As, therefore, the Deity Himself does not condescend 
directly to administer the government of states, those upon 
whom the sovereignty rests are His depositaries of the 
civil power. ^ There is one lawgiver ' (3 James, 4, 12), It 
is in this qualified sense, then, that we speak of human or 
governmental sovereignty, and it is in this sense that we 
say in our republican form of government that the people 
are the source of power." (Potter's Dwarris, page 45.) 

Our theory is that God gives political power to man be- 
cause of a natural right men have in relation to each other 
to make such social regulations as will enable them to per- 
form their natural duties, and to accomplish the ends for 
which they were created. When a king was recognized as 
sovereign, it was understood that he was lawgiver, judge, 
governor ; that is, that he combined in himself the legisla- 
tive, judicial, and executive power. Where the people are 



34 THE STATE OF OHIO 6Vs. THE KEY. PATRICK F. QUIGLBY. 

sovereign, tliey liave witliin themselves all legislative, all ju- 
dicial, and all executive power. They find it inconvenient to 
exercise all these powers directly. They meet in a conven- 
tion and agree to distribute these powers. They establish 
a legislative, a judicial, and an executive department, and 
they put into these departments respectively so much of 
their legislative, so much of their judicial, and so much of 
their executive power as they think proper, and then insert 
at the end of the document setting forth what they have 
done, this saving clause: "All powers not hereby dele- 
gated are retained by the people." In that way they pro- 
tect themselves against these departments exercising any 
more power than is granted to them. They protect them- 
selves most particularly against the legislative department 
because they know that in that lies the greatest danger of 
usurpation. But they also protect themselves against each 
other. They take particular pains to declare that there are 
certain human rights which cannot be touched even by 
themselves, certain rights which are inalienable rights 
which come to them by reason of the natural law^ 



The Constitution op Ohio. 

The people of Ohio have done this, and they have set 
down their memorandum of association, their constitution, 
if you please to call it so, a list of some of these rights, but 
to make assurance doubly sure, they also caused to be in- 
serted a declaration that such enumeration should Hot be 
construed to deny the existence of any other natural right 
possessed by them. 

"Whenever a citizen of Ohio can shoAV a natural right 
possessed by him other than those mentioned in the con- 
stitution, it is just as much guaranteed to him by the con- 
stitution as though it were expressly mentioned there. 

I claim now that every parent in Ohio has a natural 
rip-ht to the exclusive control of the education of his chil- 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 35 

dren, and as the law in question here violates that right, 
the law must be held to be null and void. 

As this law was never violated in this manner in this 
state until a little over a year ago, nor in any other of our 
states until quite recently, it is impossible to produce what 
are commonly called authorities on the point, decisions of 
courts in similar cases. There are none. There has al- 
ways» to be a first case in these matters, and, so far as I 
know, this is 



The Fiest Case in This Countey. 

where the question has been raised whether or not the 
state has a right to enact compulsory education laws. "We 
have, therefore, to argue the question from fundamental 
principles, by the aid of right reason and such authorities 
as we may find as to how the question is to be determined 
on the principles of natural law. 

Before I undertake to show that the non-numerated 
rights gome under the natural law, I wish to prepare the 
way for that argument by undertaking to show how some 
of the enumerated rights, declared by our constitution to 
be inalienable natural rights, do really find their origin in 
the natural law ; and when your honor notes how indis- 
pensably necessary a certain line of argument is to estab- 
lish the fact of such origin, I hope it will pave the way for 
an acknowledgment that it is quite possible that a similar 
line of argument may establish, with equal certainty, the 
existence of other natural rights not specifically set forth 
in the constitution. 

The persons who placed those declarations in the con- 
stitution with regard to the rights already acknowledged 
there, must have been convinced of their truth by some 
process of reasoning. If I can be fortunate enough to find 
the same, or an equally good process, for some other of 
those retained rights, I ought to be successful enough to 



36 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

obtain an equally clear admission of tlie existence of that 
right, and if I can show its existence, this court must pro- 
tect it. 



The Eight of Life. 

The first of the acknowledged natural rights mentioned 
in the bill of rights is the right to life. Our constitution 
says that that is a right which man acquires by reason of 
the natural law. Some persons may imagine that the only 
law on that subject in the state of Ohio is the statute law of 
the state legislature, which forbids murder, but our con- 
stitution declares that all men have this right by nature, 
that is b}^ reason of their nature, by reason of the natural 
law. 

The first instance we have of any portion of the natural 
law being reduced to writing, was when God Himself wrote 
the Ten Commandments on tables of stone, and delivered 
them to Moses. Outside of the ceremonial part of the part 
of the third, fixing a day to be specially set apart for wor- 
ship of Gpd, these were not new commandments or new 
laws, but simply declarations of certain principles of this 
alread}" long-existiug natural law. 

The first written evidence that man, as against his fel- 
low-men, has an inalienable right to life, is found in the 
fifth of those Commandments, or, as some number them, 
the sixth, and the general principle is stated in four w^ords : 
" Thou Shalt not kill." 

The remarkable brevity of this section of the decalogue 
shows it is not a full, minute, and detailed declaration of 
the law, but is only a brief declaration of certain great fund- 
amental principles on the subject referred to. For a full 
comprehension of all that is involved in any one of the pre- 
cepts of the decalogue we must examine all that is involved 
in the precept, and examine it by the light of authoritj^, by 
the aid of exposition of those learned in this code of law, 
and even in the light of that great guide invoked by Cicero, 



THE STATE OF OHIO VS. THE EEY. PATKICK F. QUIGLEY. 37 

the enlightened reason of man. When we bring these 
lights to bear on the precept " Thou shalt not kill,'^ we find 
that this is only a general proposition ; that there are ex- 
ceptions and qualifications and other considerations to be 
taken into account, and the same is true of other precepts 
of the same decalogue. But man's inherent right to life 
existed before the daj of Moses, before the promulgation 
of the decalogue. Murder was forbidden before that time. 
Our constitution says that men have this right by nature, 
therefore that right began when life began to be, and will 
continue, any act of any legislature in the country notwith- 
standing, so long as men continue to exist. Now, why 
have they that right ? On what principle is it based ? I 
think we will have to admit that it is based upon the prin- 
ciple of correlation ; upon the principle^ of right reason, that 
where a man is in duty bound to do a certain thing, he has 
a right to the means necessary to enable him to discharge 
that duty. God gave life to man in order that man might 
know Him, love Him, and serve Him in this life, and be 
happy with Him forever in the next. He made it the duty 
of man that he should use the life given him in such man- 
ner as to redound most to the honor and glory of his crea- 
tor ; and He also maintained that the longer a man remained 
in this world, and continued to fight the good fight, the 
greater should be his reward in the life eternal. It was 
therefore of the greatest importance to man that he should 
be permitted to live out the full period of life which God 
chose to grant him. And as this was a matter entirely be- 
tween man and his Creator, no one else was allowed to in- 
terfere to shorten his term of life. When it is shortened 
by proper authority, it is done by authority received from 
God, who is the giver of life and who alone may lawfully 
ordain or permit its termination. As soon as any people 
deny that this political power comes from God, you find 
them beginning to doubt their authority to take life in 
punishment of crime, a doubt soon resolved by their aboli- 
tion of capital punishment. 



38 THE STATE OF OHIO ' l'6\ THE KEV. PATRICK F. QUIGLEY. 

This is but a slight exposition of the reasons why man 
has an inalienable right to life. It is set forth only as a 
part of the reasoning which goes to prove how it is and 
why it is that man, as against his fellow-men, has this in- 
herent, inalienable, and indefeasible right to life, but mainly 
to show how far we have to reach out to find the reasons, 
the satisfactory explanation of so apparently self-evident a 
proposition as that a man has an inherent right to life, 
under and by virtue of the natural law. 



Political Powee in the People. 

The Ohio constitution also says that full political power 
is inherent in the people, therefore existing there by reason 
of the natural law, therefore coming originally from God — 
a doctrine recognized also in our Declaration of Independ- 
ence. No one who believes in the Ohio constitution can 
deny that proposition, yet is it such an easy matter to 
prove it? How will you prove that political power in this 
country does not proceed originally from the people? 
And yet unless we are going to take our constitutional guar- 
antees entirely on faith, we must find some way to prove 
that all political power comes from God. If it does not — 
if it is merely granted to the people of Ohio by a majority 
vote in a constitutional convention, then a like majority 
Tcte may at any time take it away from them. 

The Ohio constitution declares that all men have a 
right to worship God according to the dictates of their own 
conscience. 

Is this true ? And if so, what is the course of reason- 
ing necessary to prove it ? 

I have given some examples of the way in which I 
would try to prove that the framers of the Ohio constitution 
were right in their declarations that certain rights of man 
were inherent in him under the natural law. If counsel for 
the state will establish why this last cited declaration of 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 39 

the Ohio constitution is founded in right reason I think I 
may say that I will accept that line of reasoning as suffi- 
cient basis for the claims I am advancing here for the 
defence. 

The Ohio constitution declares that man has also an 
inalienable right to liberty and to acquire, possess, and 
protect property, and to seek and obtain his own happi- 
ness and safety. 



An Inalienable Eight. 

An inalienable right means one that a man cannot get 
rid of even if he wants to ; one that he can neither sell, nor 
give away, no matter how much he may try to do so ; one 
that he can no more get rid of than he can get rid of his 
shadow in the sunshine, and this because it is something 
that inheres in him — sticks to him as long as he continues 
to exist, and hence called inherent. An inalienable right 
of man exists only because of connection with some inalien- 
able duty. Such duty can exist only as to his Creator, 
hence it is impossible to account for natural rights except 
on the theory that man is a creature whose paramount 
allegiance is due to his Creator. 

Whenever you find imposed upon man an inalienable 
natural duty, there goes with it an inalienable natural right 
— a right to the use of all means necessary to the proper 
performance of that duty. Such duties arose because of 
the natural law ; the correlative rights flow also from natu- 
ral law. Those natural duties continue with man as long 
as man continues to exist ; and the correlative natural 
rights necessarily follow with them forever. 



40 THE STATE OF OHIO VH. THE KEV. PATKICK. E. QUIQLEY. 



II. 

The Natueal Law Eecognized in Ohio. 

Before undertaking to show exactly how the natural 
law affects this case, I want to show how it came about 
that the natural law is so fully recognized by the constitu- 
tion of the state of Ohio. 

When the country out of which the original United 
States was formed began to be settled by the men whose 
successors in interest we are, those men brought with them 
such acknowledged personal rights as were guaranteed to 
them by the English constitution. 

But no matter how far the natural rights of men may 
have been infringed upon and denied before that time, and 
no matter how far such infringement had been submitted 
to or even acquiesced in, in the year 1776, the people of 
this country threw all that aside by their Declaration of 
Independence. That instrument begins with the memor- 
able words : " When, in the course of human events, it be- 
comes necessary for one people to dissolve the political 
bonds which have connected them with another, and to 
assume among the powers of the earth the separate and 
equal station to which the laws of nature and of nature's 
God entitle them, a decent respect for the opinions of man- 
kind requires that they should declare the causes which 
impel them to the separation. We hold these truths to be 
self-evident, that all men are created equal ; that they are 
endowed by their Creator with inalienable rights ; that 
among these are life, liberty, and the pursuit of happiness." 

The instrument closes with these words : " We there- 
fore . . . appealing to the Supreme Judge of the world for 
the rectitude of our intentions, do (declare, etc., our in- 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 41 

dependence, etc.,) and for the firm support of this declara- 
tion, with a firm reliance on the protection of a Divine 
Providence, we mutually pledge to each other our lives, 
our fortunes, and our sacred honor. 

In these words of the Declaration of Independence 
there is a distinct recognition of a number of very impor- 
tant propositions, namely, of the created state of man ; of 
God as his Creator ; of the law of nature or the natural 
law, and that all of the inalienable rights which man has 
he got from God, from the fact that he was endowed with 
them by his Creator. There is also in these words substan- 
tially the declaration that man's right to political power 
comes from God, that the right of a people to organize 
themselves into a state and assume their place among the 
powers of the earth is one to which they are entitled by 
the laws of nature and of nature's God. It is equivalent 
to the declaration that all political power is inherent in the 
people because that is one of the rights with which they 
were endowed by their Creator. 

Now, no right which comes from God can be inconsist- 
ent with any other right which comes from God. There- 
fore, the right to use political power cannot be used to 
defeat any other right which comes from God ; therefore, 
no legislature may violate the natural law ; therefore, all 
rights under the natural law are indefeasible by any human 
authority. 

The men who made that Declaration of Independence 
declared they were sincere in their declaration; they 
appealed to the Supreme Judge of the world to witness the 
rectitude of their intentions. That is equivalent to the most 
solemn oath a man can take. They were bound by that 
oath, and we, as their successors in. interest, are also bound 
by it. After this expression of their sincerity, they ap- 
pealed to God to help them in their struggle. He did so. 
He gave them victory, but a victory which they were bound 
to use only in accordance with the true principles of their 
declaration. We are also bound by every obligation pos- 



42 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

sible between God and man to use the political power they 
transmitted to us only in accordance with the true princi- 
ples on which it is based. 



The Declaration of Independence. 

The Declaration of Independence was that all the 
colonies which joined in it should become free and inde- 
pendent states, with full power to do all things which inde- 
pendent states may do. 

Each one of those colonies did become a free and inde- 
pendent state in pursuance of that declaration, and the 
people in each one of these states thereby came into the 
lawful exercise of all the rights they claimed, of the inalien- 
able rights of man under the natural law as well as others. 

They did not acquire those rights by reason of England's 
recognition of their independence. Once we had declared 
our independence the admission of England of the fa^t that 
we were really independent, so far as the principle in the 
matter is concerned, was of no more importance to us than 
the recognition of the fact by Morocco, Siam, or Japan. 
AVe compelled England to recognize it, but the independ- 
ence itself dates from the 4th day of July, 1776. And this 
proposition is declared by the Supreme Court of the United 
States in Mcllvane v. Cox's Lessee, 4 Cranch, 212. 

Shortly after assuming the station of independent states 
our states formed a confederate union for certain purposes, 
and later a more perfect union for other purposes, but the 
rights of the people in any state are held, not by reason of 
the articles of confederation nor by reason of the United 
States Constitution, the articles of this present union, but 
by the people in each state in their capacity as free and 
independent people in a free and independent state, under 
and by virtue of their inherent rights under the natural 
law. 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 43 

The region now known as Ohio was a part of what was 
called the Northwest Territory. 

In 1787 Congress provided a territorial government for 
it. In that organic act it was declared that for the purpose 
of " extending the fundamental principles of civil and relig- 
ious liberty which form the basis whereon these republics, 
their laws and constitutions, are erected," the said terri- 
torial legislature " shall have authority, among other things, 
to fix and establish those principles as the basis of all laws, 
constitutions, and governments which forever hereafter shall 
be formed in said territory." 

Now I submit that I have already shown that the recog. 
nition of all inalienable rights secured by the natural law 
was one of the "fundamental principles of civil liberty 
which form the basis whereon these republics, their laws 
and constitutions, are enacted." Therefore, so long as 
there is an honest adherence to the ordinance of 1787 no 
constitution could have been formed for the state of Ohio 
which did not recognize the binding force of the natural 
law. 

That ordinance was confirmed April 30, 1801, by the act 
of Congress relating to the permission of Ohio to form 
itself into a state, in which it was provided that the consti- 
tution should not be repugnant to the ordinance of 1787. 



Ohio's First Constitution. 

As a necessary consequence of these provisions, inde- 
pendent of the natural desire of the people of Ohio in that 
direction, the first constitution of Ohio, that of 1802, fully 
recognized that man had certain "natural, inherent, and 
inalienable rights," and then it enumerates some rights 
which it declares are " among " these rights ; but not in any 
way denying that there might be other inalienable rights 
not therein enumerated. 



44 THE STATE OF OHIO VS. THE HEV. PATRICK F. QUIGLEY. 

Tlie constitution of 1802 was particularly explicit in 
protecting religious liberty, and even required the legisla- 
ture to pass laws securing to each organized religious de- 
nomination an equal share, proportioned to its members, 
in the profits arising from the sale of lands granted by con- 
gress for the support of religion. Art. YIIL, Sees. 1, 3, 18, 
26, and 28. 

Then came the constitution of 1851, with the further 
guarantee of rights under the natural law. 



The Natukal Law Eecognized. 

This shows an unbroken chain of recognition of the 
binding force of the natural law in Ohio, from the full ac- 
knowledgment in the Declaration of Independence in 1776, 
down through the ordinance of 1787, and the constitution 
of 1802, to the constitution of 1851, now in force. This also 
explains the declaration concerning Christianity as being a 
part of the law of the land. Christianity is a confirmation 
of the natural law ; but it is the natural law itself which is 
the fundamental law of the land, and not any particular 
confirmation of it. Whatever of religious truth there is 
in Judaism, Islamism, Buddhism, Socialism, or any other 
"ism," is a part of the law of the land, not because it is the 
belief of any certain or uncertain number of persons, but 
because of its being in conformity with the universal law, 
not only of the state of Ohio but of every human society, in 
what part soever of the world it m.Sbj be located. And in 
this all have a standard to measure what alleged religious 
practices may, and what ones may not, claim, protection 
here. Nothing may claim protection here as being a relig- 
ious practice if it is contrary to natural law, because ^he 
natural law is here the fundamental, paramount authority, 
and on the other hand everything warranted by the natural 
law must be protected here. 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 45 



III. 

Education a Paeental Eight by Natural Law. 

Having, as I trust, shown that the natural law is para- 
mount in Ohio, I will now undertake to show that under 
the natural law to the parent alone belongs the right to 
control the education of his child. This I shall undertake 
to do, first, by argument from right reason alone ; second, 
by citation from writers whose opinions are received as 
authority upon the matter. 

And first, then, as to what right reason itself would 
indicate in the matter. 

Generally, any personal right, under the natural law, is 
so evidently reasonable and just that for those who are in- 
terested in maintaining the right, no argument is necessary 
to establish it. All who are unmistakably interested , in 
maintaining the right exclaim at once that the truth of the 
proposition is self-evident ; but the moment a conflicting 
interest appears, or one which seems to a certain class to 
be conflicting, then conflicting opinions arise. At one time 
in the Old World there was a very prevalent opinion con- 
flicting with the proposition that every man had an inalien- 
able right to life. The lives of the vanquished in battle 
were forfeited to the victor, and for a long time in pagan 
Kome the life of the wife and the lives of the children were 
held to be subject to the will of the father throughout his 
life, no matter how old the children became during such 
continued life of the father ; also the life of the slave or 
servant; all life inside the precincts of his home was sub- 
ject to his will. 

In the olden times in the Old World, and until very 
recent times in the New, man's right to liberty was very 
extensively, persistently, and successfully denied. 



46 THE STATE OF OHIO VS. THE, REV. PATRICK F. QUIGLEY. 

In the feudal ages of Europe, how wide was the recogni- 
tion of the doctrine that all men had an inalienable right 
to property ! In these actual present days of our own 
time, how numerous and clamorous the voices declaring 
against the existence of any exclusive right to property ! 
Yet the Ohio constitution declares that all men have, by 
]iature, an inalienable right to life, liberty, and property , 
therefore that these rights have always existed, do now 
exist, and must exist forever, and exist by reason of the 
natural law, all opposition, denial, and clamorous assertion 
to the' contrary notwithstanding; therefore that a right may 
exist by natural law, though an accidental majority may 
contemptuously ignore it. 

It is considered sufficient proof of man's natural right 
to life to say : God gave the life, and ordained duties in 
connnection with it ; therefore, as against other men, man's 
inalienable right to retain it. 

As to liberty, God gave it and ordained duty in connec- 
tion with it; therefore, as against otlier men, man's inalien- 
able right to enjoy it. 

As to property, God gave it, with attendant duties ; 
therefore, as against other men, man's inalienable right to. 
protect it. 

And so we may say as to children : God gave them to 
parents with attendant duties ; therefore, as against other 
men, parents, inalienable right to control them. 

Why is not this last sufficient, the same as the others ? 
It is sufficient ; but why is not this sufficiency recognized ? 
Simply because a popular error has sprung up on this 
point, and, carried away by a temporary excitement, an ac- 
cidental majority has substituted the false for the true 
doctrine. After nearly a hundred years' tacit recognition 
of this true doctrine in the state of Ohio a little bill is 
rushed through the legislature two years ago, and lo and 
behold ! the face of nature is changed, the laws of nature 
fire changed, the rights of man are changed ; children no 
longer belong to their parents ; children belong to the 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 47 

state ; parents are no longer responsible to God for their 
children; the state assumes responsibility and God has 
nothing to do with the state. And all this because a few" 
men down in Columbus are brought to say yes instead of 
no on a certain day. That is a good start in the conflict 
between the claims of men and the rights of man. Get the 
principle established that a sufficient majority in the legis- 
lature is sufficient to establish any new doctrine and the 
rest is easy. Teach the people to despise appeals to the 
natural law and to declare that the law of Ohio is good 
enough for them and the end is not far off. When I say 
"law of Ohio" in this sense, of course it is understood I 
mean not that which is truly law, but any false, unwar- 
ranted, accidental majority declaration of law as I claim is 
the case with the act now in question. 

Far be it from me, your honor, arguing here in this 
judicial and co-ordinate branch of the government of this 
state, to speak with anj improper criticism of the action of 
another co-ordinate branch of this government. The legiti- 
mate and proper acts of the legislative department of this 
state must be received here with respect and acknowledged 
as of binding force, but the office of the judicial department 
of the state is two-fold, first to determine what acts of the 
legislature are legitimate and proper, second to determine 
what rights exist under such legitimate acts. 



A Bight op any Citizen. 

In the exercise of the first and higher of these powers, 
the court scans each new act presented to it, and measures 
it by the standard of our fundamental principles of legisla- 
tion to see whether it has the proper credentials to insure 
its reception and recognition as being among the legiti- 
mately enacted laws of the land. This is why lawyers are 
wont to say that a statute amounts to nothing until it has 
received judicial construction. It may be born from the 



J 



48 THE STATE OF OHIO VS, THE REV. PATilICK F. QUIGLEY. 

legislative body, but until it has received the baptism of 
judicial sanction, it is something the authority of which any 
citizen may lawfully question, provided only that he do so 
by proper appeal to the judicial department of the govern- 
ment. Therefore no stigma of contempt for the law may 
properly be attributed to the defendant herein, because of 
his having challenged the authority of this law. He, as 
well as all other citizens, had a perfect riglit to challenge 
the legitimacy of this new legislative birth, and to demand 
of the court in whose jurisdiction he found himself, that an 
examination be made to see if this proposed new law is 
lineally derived from the fundamental principles of right 
and justice, from which alone all proper legislation must 
proceed. In doing this he is rendering the public a service, 
because this law confessedly does abridge personal liberty. 
It is important to know whether such abridgment is 
lawful. Sec. 18, Art. YIII. of the Ohio constitution of 1802 
declares : " That a frequent recurrence to the fundamental 
principles of civil government is absolutely necessary to 
preserve the blessings of liberty." 



Geneeal Compulsory Education. 

Let us do so in this case. Let us take up this general 
' compulsory education bill and compare it with the funda- 
mental principles of civil government, and see whether there 
is any harmony between them. General compulsory edu- 
cation — why, the very name is startling ! Why not general 
compulsory accumulation as well f "Why not compulsory 
property ? Why not compel all men to have $1,000 apiece 
on beginning the business of life? It can be done by estab- 
lishing a public labor system and compelling them to 
.attend it. Compulsory labor — never mind about liberty. 
This is only a small restraint on each one for a limited 
time, and it will be for the general good. It will teach 
young men proper habits of food, exercise, labor, dress, 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 49 

and expenditure. It will be good for tffem — good for all. 
Tliat there would be a certain amount of good in it I will 
not deny, and I can understand that such a school would 
be immensely popular with some people. But what I can- 
not understand is how we could uphold the fundamental 
principles of liberty, and yet compel every youth in the 
land to attend that school, or to follow the same course of 
labor either at home or in some other school, whether ho 
or his family wished him to do so or not. I cannot under- 
stand how 501,000 men in Ohio, who might be willing to 
surrender their liberties in this respect, could properly 
compel 500,000 others to do so who object. The natural 
law protects minority rights. It is the great, original, uni- 
versal constitution, which everywhere declares, with unde- 
niable accuracy, and everywhere protects with divine 
authority, the inalienable rights of every creature of God. 

The people of each state have over them their state 
constitution. The states united have over them the national 
constitution. Other nations have their constitutions. 
Over all the nations of the world there is the international 
law of the world. Over all possible worlds there is the law 
of the universe, this same natural law. It is of this law 
that the great Hooker spoke when he exclaimed : " Of law 
there can be no less acknowledged than that her seat is the 
bosom of God, her voice the harmony of the world. All 
things in heaven and earth do her homage, the very least 
as feeling her care, and the greatest as not exempted from 
her power. Both angels and men, and creatures, of what 
condition soever, though each in different sort and manner, 
yet all with uniform consent admiring her as the mother of 
their peace and joy." (1. c.) 

This is that natural law which protects the liberties of 
man. "We must recognize it. We must adhere to it, else 
we have no protection against the mad majority of the 
hour. It is our ark of freedom. It is something greater 
than the constitution ; older than the constitution. A con- 
stitution is the work of man. It may be made in a day, and 



50 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

destroyed in anotlier, but tlie natural law is the work of 
God. It endures forever, and only in those societies based 
upon the fundamental principles of this natural law is 
human liberty secure. 

Our states here are avowedly based upon those funda- 
mental principles, and we are reminded in our constitution 
that a frequent recurrence to those principles is indispens- 
ably necessary for the preservation of our liberties. 

If we undertake to recur to the fundamental principle 
on which man's liberty in the matter of education is based 
we must, in order to understand them, recur to the funda- 
mental principles on which society is based. 



What is Society? 

The family was the first human society. It was di- 
vinely established from the creation of man. " Male and 
female created He them," and ordained that they cleave to 
each other, and increase and multiply. Their union was 
to be as lasting as life and holy as love. The object of 
this union was to bring forth and perfect new creatures 
for the honor and glory of God. Remember, there is no 
question yet as to the rights of the state. The state does 
not yet exist. The state comes into being later by the 
union of these families. At present we have only the 
families, and only such rights and duties as exist in the 
family. "What duties exist there ? Of all beings the human 
infant is the most helpless and remains longest in the need 
of care. The parents owe protection, nurture, and educa- 
tion to their children ; the children owe love, respect, 
honor, and obedience to their parents. The children have 
a right to nutrition and education; the parents have a 
right to control as to both of these things. This right is 
exclusive. No other family may interfere, and as yet the 
state does not exist. These duties are imposed by natural 
law, by the very nature of society and the members of it. 



THE STATE OF OHIO VS. THE KEY. PATliICK P. QUIGLEY. 51 

The rights which necessarily accompany these duties arise 
also therefore from the natural law, and are therefore inher- 
ent and inalienable. How long were these rights held by the 
parent before there was any state in existence ? How soon 
was the first state government formed ? Until a state was 
formed these rights must have been held and exercised by 
the parents. When did the state ever get these rights 
from the parents ? They were natural rights ; how could 
the state get them ? Natural rights cannot be taken away 
by force. The right will remain no matter what force may 
be used. Natural rights cannot be surrendered volun- 
tarily. They are inalienable. They exist because of duties 
divinely imposed. Those duties always remain, and of 
necessity the rights remain with them forever. How then 
could the state ever obtain these rights? Therefore of 
necessity to the parent alone belongs, and with the parent 
alone must forever remain, the exclusive right to control 
the education of his children. 

The family was the first human society. It was a society 
small as to numbers but perfect in its organization, pos- 
sessed of all the rights and powers needed to fulfil the 
object of its existence. Upon all its members were imposed 
certain duties. Upon the man as head of the family was 
imposed the duty of governing this society, hence the right 
to govern it ; and to govern it is to control its policy as to 
the best means of accomplishing the object of the society. 
When families became numerous in a certain region it was 
necessary to have a union of these families for the preser- 
vation of order, and to provide for the comrjon defence. 
The heads of these families met for the purpose of agreeing 
with one another as to what means should be adopted to 
secure these ends. The moment a number of families had 
agreed to act together for these purposes, there was thereby 
a new association formed, a new society established ; there 
was a birth of something ; or if we use a term derived from 
the Latin — natus — born, we may say there was a nation of 
something^; and as we call the most important of all books 



52 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

simply the Book, with a large B, so this important birth 
or nation was spoken of as of the Nation, with a big 
N, and then the thing born, the new society, came to 
be called a nation. A nation in this sense is not neces- 
sarily large or powerful. The United States recognizes 
many Indian tribes as nations, and makes treaties with 
them as with other nations. The primary meaning of 
the word state means a condition or mode of being. When 
these various families assumed a new mode of being with 
regard to each other, they existed in regard to each other 
in a new state or condition, and this new mode of existence 
being a most important state or condition, came to be 
called a state, and finally the new society itself came to be 
called the state. 

Nowadays a state is formed quickly. A convention is 
called ; there is some discussion as to the terms upon 
which the people agree to live together under the state 
relation ; the parties come to an agreement. A memoran- 
dum of that agreement is made in writing and signed by 
the members of the convention ; the memorandum is called 
the constitution. It is submitted to the people for their ver- 
dict ; the people confirm it, and lo, in a few months a new 
state is formed. The early states were not formed so 
suddenly. Slowly, generation after generation, one prin- 
ciple after another was accepted, never reduced to writing, 
but gradually acted upon, until a more or less perfect state 
organization was obtained. But when obtained, a state so 
organized was not something separate from the people ; it 
was simply the people themselves, acting together in a 
certain way for a certain purpose. In the early democratic 
states, when any general laws were to be enacted, the 
people gathered together in the legislative hall or place of 
council, and voted the laws in person. The appointing of 
deputies to act for them was simply a device of a later day, 
when the people had become too numerous to act together 
in person. To understand well the rights of the state, let 
us keep to the original republican state, where the people 



THE STATE OF OHIO VS. THE REV. PATRICK E. QUIGLEY. 53 

who possessed inherent political power exercised it in per- 
son and not by deputies. 

In the days of the early state, to be an adult male was 
to be almost without exception the head of a family. When 
the heads of families met to make laws the legislature was 
in session, the state was acting, the state was making laws. 
The heads of families knew the natural law ; they knew 
their duties as to their children ; they knew their duties 
with regard to the education of their children. They knew 
that for each one of them the faithful compliance with that 
duty was a matter of conscience, and that for that faithful 
compliance they would be held accountable by the author 
of their being. Does any one say this is fanciful because 
in early times man was savage? Some men were and are 
yet, but education of children began at some time, and I 
am' speaking of the time when it began. When in those 
times the industrial occupations of men became so numer- 
ous and various that it was practically impossible for the 
people to attend to all of them in person, and to in- 
struct their children also in person, the question arose 
with them whether they might in conscience commit 
this duty of educating their children to other persons 
specially devoted to that work. As long as it was a 
question of simply employing private tutors to come and 
reside in the home and give instruction under the eye of 
the parents, there was little question al^out it. Merely one 
as to the fitness of the persons so employed. But when it 
became a question of sending the children out of the house 
to a school common to several families, it began to raise a 
serious question; but even then it was purely an indi- 
vidual question, particular to each parent, whether he could 
in conscience permit his children to attend such a school. 
That was a question which each parent was in duty bound 
to examine and determine for himself. He could not con- 
sent that his neighbors determine it for him. They were 
not responsible to God for the souls of his children. They 
had no duty with regard to his children ; therefore they 



54 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

could have no rights with regard to his children ; therefore 
no mere majority of his neighbors sitting in general council 
^ith him might enact any general law compelling him to 
give any particular kind of education to his children, nor 
any particular amount of it, nor to give it at any particular 
time, or for any particular length of time. The duty of 
any one member of that assembly toward his own child- 
ren in the matter of education was simply a moral duty, 
a matter of moral obligation between himself and his 
Creator, and one which his neighbors had no right to 
undertake to compel him to perform. The utmost that 
those other parents could do by general law would be to 
agree to have a school in common, a common school, a 
public school, established in a certain place, in which 
certain instruction should be given, and send their children 
to it, if they liked ! But they would have no right to com- 
pel other parents to send their children to it, nor to compel 
other parents to give the same kind of instruction at home 
as given in that central, general, common, public school. 

A Parent's Obligations. 

Each parent is under obligations to give his children a 
proper education. This oblif i.tion is imposed upon him, 
not by his neighbors, but by his Creator. What would be 
a proper amount of education in one case might not be a 
proper amount in another case ; therefore his neighbors 
would have no right to say that the same amount should 
be given in all cases. 

Now, if that would be true at any stage in this world's 
history, and under any circumstances, it must be true at 
all stages and under all circumstances, because the natural 
law is always and everywhere the same. 

But the alleged compulsory education law of Ohio does 
attempt to prescribe what instruction a parent shall give 
his child in all cases, and where and when, and to what 
extent, and is therefore in violation of natural law, and 
consequently null and void. 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 55 



IV. 

Authorities on Natural Law. 

I have in the foregoing tried to show, by reason alone, 
that the education of the child belongs to the parent by 
natural right. I said I would also cite authorities in sup- 
port of that proposition. 

I undertook to show in the beginning of this argument 
that the declarations of churchmen as to natural law must 
be received with great respect, because the administration 
of the natural law is the business of their lives ; and they 
therefore make a special study of it, and therefore any 
declarations they make will be received as in the nature of 
authorities, and the weight of their authority will be esti- 
mated by the learning of the Avriter and the responsibility 
under which he writes. There is probably no other man 
in Europe to-day whose opinion? on natural law are 
received by all with as much respect as is given to the 
declarations of Leo XI II. There is no nation with which 
he has had more bitter contention than with Germany ; no 
statesman with whom he has had more prolonged and hos- 
tile struggles than with Prince Bismarck ; yet when Ger- 
many and Spain were on the brink of war as to the sover- 
eignty of the Caroline Islands both countries agreed to 
leave the law of the case to the decision of Leo XIII. It 
was largely a question of natural law, because international 
law is founded on natural law. We may, therefore, for 
several reasons, confidently cite him as an authority on 
natural law. No one worthy to speak on these questions 
will venture to claim that Leo XIII. would declare to the 
world that a certain right existed under the natural law 
unless he had carefully considered the matter and was 
clear as to his judgment upon it. 



56 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

Tlie opinion or judgment of the occupant of the Papal 
chair on the questions that come before him is given in 
various ways. What are called Papal briefs and Papal 
bulls are issued in particular cases and for particular pur- 
poses. There are occasions, however, when the Holy 
Father addresses the whole world. When he does this the 
document is called an " Encyclical" — that is, something that 
extends throughout the whole circle. Such utterances are 
not only not made except under what are considered the 
gravest circumstances, but also are made only under cir- 
cumstances which are considered to affect the people of 
the whole world. In such documents, the discussion is 
not of any mere local rules or regulations, but, of neces- 
sity, of the fundamental principles of right and justice 
which must be equally applicable to all time.., all places, 
and all peoples. 

Therefore, all the declarations of general principles 
found in an encyclical must be received with all the confi- 
dence and respect which it is possible for any one to give to 
the most serious declarations coming from such a source. 

On the 10th of January, 1890, His Holiness Leo XIII. 
issued the encyclical called " Sapientiae ^hristianse," 
treating of the principal duties of Christians. Treating of 
duties, he of necessity referred occasionally to rights. 



The Duties of Paeents. 

Treating of the duties of parents as to* the education of 
Vy their children, he said, (division VIII. of the encyclical) : 
" We are unwilling to pass this point without exhorting 
here especially the fathers of families to regulate by these 
principles the government of their homes and the educa- 
tion of their children. The family is the cradle of civil 
society, and to a great extent it is in the domestic circle 
that the destinies of states are prepared. Therefore those 
who would destroy Christian institutions begin by attack- 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 57 

ing the principle of the family, and by seeking to corrupt 
it in its most tender off-shoots. They do not allow them- 
selves to be turned aside from their object by any consid- 
eration of the fact that they cannot accomplish that object 
without perpetrating upon the parents a most cruel out- 
*rage, for to those parents belongs, by virtue of the natural 
law, the right to educate those to whom they have given 
life, and with that right goes the obligation to so shape the 
education as to bring the children to that end for which it 
was permitted to the parents to transmit to them the gift 
of life." 

There is a very direct declaration, from a very high 
authority, that control of education is one of the parent's 
natural and therefore inalienable rights. 

The _jBible is full of declarations commanding parents to 
educate their children, therefore full of declarations that 
control of education is one of their natural rights. 

Is there anywhere in the Bible any command for a 
parent to educate some one else's children ? No. Whence, 
then, may he claim that right ? 

Is there anywhere in the Bible any command for kings 
or rulers to educate the nation ? Whence, then, may they 
or their states claim such a right ? 

But in the Bible the Church is commanded to go and 
teach all nations, and out of that command it draws its 
/ights. And the Church teaches the nations that upon 
parents rests the duty to impart education to their chil- 
dren, and that to parents belongs the right to control that 
education. 

As to expressions of individual opinions, there are a 
great many writers who more or less directly discuss 
various principles of the natural law. Passing the ancients, 
there have been since the Christian era two schools — the 
Catholic and the Independent. Of the Catholic there are 
three divisions — the patristic, the mediaeval, the modern. 
Of the patristic, Clement of Alexandria, Origen, Basil, 
Gregory Nazianzen, and by the way to-day is his feast 



58 THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 

day, Gregory Nyssemis, St. Clirysostom, St. Ambrose, and 
St. Augustin. Of tlie mediaeval or scholastic, Thomas 
Aquinas, Dominicus Soto, Molina, Lugo, Lessius. Of the 
independent there are Grotius, Hobbes, Spinoza, Puffen- 
dorf, Thomasius, the two Cocceji, Kestner, Heineccius, 
Leibnitz, Wolf, Burlamaqui, De Felice, Yivat, Bacon, 
Locke, Condillac, Montesquieu, Yoltaire, Diderot, Eous- 
seau, Bentham, Stuart Mill, Kant, Schelling, Fichte, 
Hegel, Stahl, Barbeyrac, etc. 

The modern Catholics are Taparelli, Dmowski, Soli- 
mani, Tolomis, Liberatore, Tongiorgi, Cornoldi, Balmes, 
Donoso Cortes, De Lehen, De Margerie, Onclaire, At, 
Vallet, Ch. Perin, Moulart, Chesnel, Laforet, Keller, Yon 
Weddingen, Burquard, Kleutgen, etc., etc. The Independ- 
ents are pretty good in asserting the rights of the people 
as against individual tyrants, but not so good in advocating 
individual rights as against the people. The modern 
Catholic is simply a revival of the early Catholic, which 
holds that there are some single individual rights of man 
of more importance than all the material grandeur of all 
possible civil states, because the former are spiritual and 
eternal, and the latter material and temporal. 



Taparelli. 

By common consent Taparelli stands at the head of the 
modern Catholic school. I have here his work on the nat- 
ural law, in two octavo volumes, in the original Italian, 
written from 1840 to 1843. I am not aware that it has yet 
been translated into any other language. While I cannot 
say he is an obscure writer, I find him a little difficult. I 
cannot give his sense off-hand, and so, with the aid of my 
client, who is a much better Italian scholar than I even 
pretend to be, I have worked out passages, which I present 
as correct translations, and which I hope to prevail upon 
your honor to accept as correct law. 



THE STATE OF OHIO VS. THE EEV. PATKICK F. QUIGLEY. 59 

I will not detain the court here with Taparelli's declara- 
tion that education is a parental right. I think it is pretty 
well established that this is a right originally inherent in 
the parent. The only real question now is, how far may 
that right be invaded by the state, on the plea that to do 
so would be for the public good ? I hope it will not be 
considered that I have trespassed too far upon the atten- 
tion of the court in trying to set forth the origin, nature, 
and dignity of this right. We are now threatened with a 
definite encroachment upon that right, and we have to de- 
termine whether that encroachment is legitimate or not. 
It was important, therefore, to show the nature of this 
right, where it arose, in whom it was first vested, how far 
it was recognized and how ancient, how extended and how 
continuous has been that recognition. I have shown that 
it began with the beginning of men; that it was recognized 
in ancient, mediaeval, and modern times down to the foun- 
dation of the American republic. I have shown that it was 
asserted in our Declaration of Independence, guaranteed 
in the Constitution of the United States, and promulgated 
in the ordinance of 1787. 



Eeviewing the Constitutions. 

This brings it down to the first constitution of the state 
of Ohio. I propose to examine now all the constitutions 
ever established by the people of the state of Ohio, and 
see if those people ever attempted in any of those consti- 
tutions to infringe upon this natural right. There are only 
two of those constitutions, and the examination will not 
delay us long. If we find that there were never any at- 
tempts in those constitutions to assert the claim made only 
a few days ago by this law, then we will have put the advo- 
cates of the law under the reasonable obligation of show- 
ing by what right they undertake to enact such a law. 

In the constitution of 1802, the first constitution of the 



60 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY, 

state of Ohio and the one under Iwhicli the people of Ohio 
lived for the first half century of their state existence, 
there is not one word authorizing the establishment of 
schools ; there is no special clause upon the subject of edu- 
cation ; there is merely an incidental reference to it in the 
bill of rights. In section 3 of that bill of rights the framers 
of the constitution set forth the rights of all men to relig- 
ious liberty, declaring that no one should be obliged to 
attend, erect, or support any place of worship without his 
consent. To show, however, that by this they did not mean 
any contempt for or hostility to religion, they added the 
proviso : " But religion, morality, and knowledge, being es- 
sentially necessary to good government and the happiness 
of mankind, schools and the means of instruction shall for- 
ever be encouraged by legislative provision, not inconsist- 
ent with the rights of conscience." There is a declaration 
of the constitution. What does it mean? You, gentlemen 
of the jury, may ask : " How are we to tell ? The consti- 
tution is a legal document. Maybe there are some rules 
about interpreting what is said in legal documents different 
from what is said elsewhere. If we are to take the ordi- 
nary natural meaning of those words, like we would of any 
other words, we could probably tell.*' 

"Well, gentlemen, there is a rule laid down by Lieber in 
his work on legal hermeneutics. For the benefit of the 
jury I will state that Dr. Lieber is considered a great au- 
thority on the fundamental principles of law. When the 
two governments of the United States and Mexico estab- 
lished an international tribunal to determine certain cases 
pending between the two governments, the United States 
appointed one commissioner and Mexico appointed another. 
It was necessary to choose an umpire to determine in case 
the representatives of the two nations could not agree. By 
consent of both nations Dr. Lieber was chosen as this um- 
pire. One of the great rules of interpretation as stated by 
Dr. Lieber is as follows : *' The very basis of all interpreta- 
tion is that no sentence or form of words can have more than 



THE STATE OF OHIO VS. THE REY. PATRICK F. QUIGLEY. 61 

one true sense," and the interpretation must be made in good 
faith, and " good faith in interpretation means that we con- 
scientiously desire to arrive at truth ; that we honestly use 
all means to do so, and that we strictly adhere to it when 
known to us. It means the shunning of all subterfuges, 
quibbles, and political shuffling ; it means that we take 
words fairly as they were meant." Liiber, Legal Herme- 
neutics, vol. bk. 1, ch. 6. 

Now, who was it used these words in the constitution ? 
Some old judge a thousand years ago in a language not 
now well understood ? No. They were used by people of 
Ohio, who had got together to settle the terms on which 
they would consent to a state government. Those people 
knew how to say what they meant, and on that solemn 
occasion they certainly meant what they said. 



"What They Meant. 

I have shown you what they said. Now, what did they 
mean by that? Did they not say that schools and the 
means of instruction should be encouraged in order that 
religion, morality, and knowledge might be taught therein ? 
Whence comes, then, the right of the legislature to limit 
those schools to instruction in knowledge alone? The 
people of Ohio said in their constitution that three things 
were indispensably necessary for good government. Those 
three things come by instruction alone. Wherefore, they 
said schools and the means of instruction should be en- 
couraged in order that those three things might be ob- 
tained ; but the proposed law here saj^s, in order that only 
one of those things might be obtained. Why only one, and 
why the particular one called " knowledge " rather than the 
one called " religion " ? If the physician declares that air, 
food, and exercise are indispensably necessary for the life 
of your child, and that arrangements must be made where- 
by the child could be furnished with these, would you 



62 THE STATE OP OHIO VS. THE REV. PATRICK F. QUIGLEY. 

claim that lie meant that the child be furnished with exer- 
cise only ? Exercise is a good thing, but the child would 
not live very long if it did not get something else. And 
knowledge is a good thing, but a state won't live very long 
that has nothing else. There never was a time in the his- 
tory of the great states of antiquity when they had more 
knowledge than just about the time when they began to go 
down. It is religion and morality that keeps states alive, 
and the men who first settled the state of Ohio were fully 
sensible of that fact. 

That in adopting the language referred to they meant 
that religion and morality should be taught as well as 
knowledge is evident because, after ordering that the 
teaching of these things should be encouraged, they added 
the saving clause that the action taken in pursuance of 
that declaration should be " not inconsistent with the 
rights of conscience." What did they put that in for if 
they did not mean that religion and morality should be 
taught? What then did they mean? They meant that 
they recognized that parents had rights in the matter of 
instruction, that the state had no authority to tax parents 
for schools which the parents could not in conscience pat- 
ronize or support ; therefore — and it was for the purpose of 
being able to draw this conclusion that I have taken you 
through all this argument about that constitutional provi- 
sion — therefore the Ohio constitution of 1802 clearly recog- 
nized the right of the parent to control the education of his 
child. 

There is no claim- in that constitution of 1802, of any 
right on the part of the state to control education, or even 
to establish state schools. All that the framers of that 
constitution claimed in the matter of education was that 
they should be permitted to give state aid to schools then 
existing, or which might thereafter exist. The schools 
which then existed were mainly religious schools, denomi- 
national schools, schools established by the different relig- 
ious denominations with funds which had been distributed 



THE STATE OF OHIO VS. THE REY. PATRICK F. QUIGLEY. 63 

to them by the state from the proceeds of the sale of lands 
donated to the state by the general government in support 
of religion and of schools, and in which schools it was nat- 
ural to expect that religion and morality would be taught. 

Section 26 of the bill of rights of the Ohio constitution 
of 1802 is as follows : " Section 26. That laws shall be 
passed by the legislature which shall secure to each and 
every denomination of religious societies in each surveyed 
township which now is or may hereafter be formed in the 
state an equal participation, according to their number of 
adherents, of the profits arising from the lands granted by 
congress for the support of religion agreeable to the ordi- 
nance or act of congress making the appropriation." 

Undei^ this constitution and the legislation following, 
religious denominations in Ohio had for fifty years the 
right to the exclusive control of their share of the public 
fund used in the schools established by them. 

And so we have got that principle of parental right in 
education recognized from the beginning of our government 
down at least to the year 1851, for that rec >gnition of 1802 
lasted at least until the new convention of 1851. 



The Second Constitution. 

Now, what did the people of Ohio do in this matter in 
1851 ? They began by repeating the former declaration in 
the bill of rights in 1802, that the legislature should pass 
"suitable laws to encourage schools and the means of in- 
struction." Art. I., Sec. 7, Const. 1851. 

Then they adopted an article on education, consisting 
only of two sections, as follows : 

"Seel. The principal of all funds, arising from the 
sale or other disposition of lands or other property granted 
or entrusted to this state for educational and religious pur- 
poses, shall forever be preserved inviolate and undimin- 
ishedi and the income arising therefrom shall be faithfully 



64 THE STATE OF OHIO VS. THE REV. PATRICK F. QTJIGLEY. 

applied to the specific objects of the original grants or ap- 
propriations." 

" Sec. 2. The General Assembly shall make such pro- 
visions, by taxation or otherwise, as, with the income aris- 
ing from the school trust fund, will secure a thorough and 
efficient system of common schools throughout the state, 
but no religious or other sect or sects shall ever have any 
exclusive right to, or control of, any part of the school 
funds of this state." 

On this I want to make the following comments : 

1. Sec. 1 provides that the national grant " for educa- 
tional and religious purposes "... " shall forever be 
faithfully applied to the specific objects of the original 
grants or appropriations." There is then a distinction be- 
tween the national school fund and the school fund to Jpe 
raised by the state, by taxation or otherwise. 

2. Sec. 2 merely provides that the state shall aid in ex- 
tending " the means of instruction " so there may be an 
efficient system of common schools throughout the state. 

3. Those two sections contemplate that the religious 
denominations should continue to have the exclusive con- 
trol of their share of the national fund, and might have a 
share of the state fund, but should not have exclusive con- 
trol of any such share of the state fund as distinguished 
from the national fund— should not have an " exclusive " 
control of any part of the " state " fund ; that is, that the 
state might have a share of the control ; might require an 
account of how expended ; might have some say in the mat- 
ter of how that money should be expended. 

That is all there is in the constitution of 1851 about 
education. There is nowhere in it any claim that the state 
has a right to control the education of the people ; nowhere 
in it any denial of the general principle that to the parent 
belongs the right to control the education of his child. 
Therefore from the beginning, from the Declaration of In- 
dependence to the Constitution of the United States ; to 
the ordinance of 1787 ; to the constitution of 1802 ; to the 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLBT. 65 

constitution of 1851, and down to April 15, 1889, there was 
full recognition that to the parent belongs the right to con- 
trol the education of his child. 

But now comes this act of the legislature of the state 
of Ohio of April 15, 1889, denying that to the parent 
belongs the right to control the education of his child, and 
claiming that to the state belongs the right to prescribe by 
general law what education all children shall receive, and 
when and where, and for how long, and to what exent, and 
under what circumstances, and to what end, and this brings 
me to the fifth part of my argument 



66 THE STATE OF OHIO VS. THE REV. PATRICK P. QUIGLEY. 



V. 

The Parent's Natural Eight. 

I claim I have shown that education is a natural right 
of the parent ; I have now to make this proposition : The 
/ legislature of Ohio has no a.uthority to abridge the natural 
^rights of parents in the matter of education. 

When I assert that the legislature has no authority to 
abridge the right of the parent to control the education of 
his child, because that education is a natural right which 
the legislature may not deny, I expect it will be replied 
that man's right to life is also a natural right, and yet the 
legislature has power to abridge natural rights. 

I distinguish. That the legislature has power to de- 
clare an abridgment of some natural rights, under certain 
circumstances, I grant ; that it has power to abridge all 
natural rights, I deny. 

Man's Eight to Life. 

Originally, man's right to life as against his fellow-men 
was inherent and exclusive. How did his fellow-men ac- 
quire authority to declare a forfeiture of that right ? 

By fellow-men must be understood here, society. 
Learned writers tell us that that power was not given to so- 
ciety in the beginning ; that when Cain committed the first 
murder (that is, the first murder of which we have any ac- 
count), God did not permit Cain's fellow-men to punish him ; 
and he had fellow-men, for all this was after " many days " ; 
nor did God Himself then deprive Cain of life, in punishment 
for that crime ; on the contrary, He forbade any man to 
slay him, and put a certain mark upon him, that his fellow- 



THE STATE OF OHIO VS. THE EEY. PATRICK F. QUIGLEY. 67 

men might know him and refrain from any attempt to take 
his life, and there is an immense school at the present day, 
in all civilized countries, which denies that society has yet 
acquired any right to take man's life, in punishment for 
crime, or otherwise. 

If any of you gentlemen will go to a livery establishment 
here, you can get a horse and buggy, in which you can be 
transported within forty minutes to an American state in 
which the proposition that man's natural right to life may 
be abridged even for murder, is absolutely denied. Eight 
here in the neighboring state of Michigan it is established 
that the legislature has no such power — there is no capi- 
tal punishment there. 

How many times have you seen men excused from jury 
duty right here, because on their solemn oaths they de- 
clared that they did not believe society had any authority 
to abridge man's natural right to life under any circum- 
stance, or for any crime whatever ? 

You see it is not such plain sailing in this matter of in- 
terfering with natural rights as some people may imagine, 
and that legislatures are not Godlike bodies, with inherent, 
omnipotent power, but are merely human instruments of 
divine authority, possessing only so much power as has 
been confided to them. You see there are two distinct 
schools on this question, and it is not entirely certain which 
one will prevail in this country yet. 

How then does that school which asserts the right to 
inflict capital punishment defend its claim ? 

It is claimed that this right was given to society when 
God, as it were, began society anew with Koah after the 
flood; that, at least, there is the first record we have of 
such a grant having been made. The school to which I 
adhere asserts that the right was given at that time ; that 
whether existing before or not, it was at least given at that 
time. From one of the writers of that school I quote as 
follows : Allies, Ch. and State, 21. 

" Thirdly, we find in Noah's family the divine authority 



68 THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 

of government expressly establislied ; for in tlie protection 
thrown over 1mm an life, the power to take it awaj in case 
of grievous crime is also given. Authority to take life 
away belongs of right to the giver of life alone. He here 
bestows the vicarious exercise of it upon that family which 
Avas likewise the first state and the fountain-head of actual 
human society." 

Now come the words of the Bible, the words of God, 
granting that right. (I will here parenthetically remark 
that in the King James Bible, the one doubtless used by 
your honor, it reads : " Whoso sheddeth man's blood, by 
man shall his blood be shed.") 

" At the hand of every man and of his brother will I re- 
quire the life of man ; whomsoever shall shed man's blood, 
his blood shall be shed, for man was made to the image of 
God. But increase you and multiply; and go upon the 
earth and fill it." 

" "We have here, then, the charter of human societj^, the 
delegation to it of supreme power by the Head of All 
Power, to be vicariously exercised henceforward over the 
whole race as it went out, conquered, and replenished the 
earth ; the sacredness of man's life declared, in virtue of 
that divine image according to which he alone of all crea- 
tures upon the earth was made, yet power over all that life 
for the punishment of crime, committed to man himself in 
the government established by God. An absolute do- 
minion over all beasts was given at the same time to man ; 
first, for himself, — in virtue of his distinction from the 
beast, in virtue of the divine image resting upon him, — -a 
delegation of divine power was set up in the midst of them, 
the supreme exercise of which is the power of life and 
death. Civil government, therefore, was no less created by 
God than marriage and sacrifice, with the religious ofiices 
belonging to it. Like them, it was ratified afresh in the 
race at this its second starting-point'* (Allies, Ch. and 
State, pp. 21, 22). 



THE STATE OP OHIO VS* THE BET. PATBICS P. QUIGLEY. 69 



The Souece op Civil Poweb. 

"We see, then, tlie source of civil power. It comes from 
God to man. But how does it come ? As I have already 
''remarked, there are two schools as to that question : One, 
that God gives political power to such rulers as the people 
agree may receive it ; the other, that He gives it directly to 
the people for them to use themselves, or to delegate the 
exercise of it to others, as they deem proper. Under the 
first theory, the rulers receive their power directly from 
God ; under the second, they get it from God, but medi- 
ately, through the people. The English government is 
organized on the first theory, the American on the second. 
Under the English theory, all legislative power is unquali- 
fiedly in the legislative body, which is their parliament; 
under the American theory, the legislative power is pri- 
marily in the people, and in the legislative body only by 
delegation from the people and subject to such limitations 
as the people may have imposed at the time of the delega- 
tion. 

Therefore, the later English decisions as to the unlim- 
ited power of Parliament to enact any law it deems for the 
public good have no relevancy whatever to the powers of 
an American state legislature. 

Civil power embraces three things : 

1. The making of laws, or the legislative power. 

2. Deciding what the law means when made, or the 
judicial power. 

3. Executing the law when the meaning is ascertained, 
or the governing or executive power. 

In many early states all of these powers were centred 
in one man, called the king. He made the laws, declared 
their meaning, and executed them. He held these powers, 
not distributed into departments, but consolidated in him- 
self ; exercised legislative judicial and executive functions ; 
was at once legislature, judge, and governor. In England 



-> 



70 THE STATE OF OHIO VS. THE RET. PATRICK F. QUIGLEY. 

this power is lield bj king, lords, and commons. Those 
are the three estates of the realm ; in them is deposited all 
power. In England the judicial, as at present established, 
is not a co-ordinate branch of the government. It is the 
mere creature of parliament, and as a creature it now ac- 
knowledges the supremacy of its creator, and declares that' 
parliament is politically omnipotent, and that there is no 
power in the judiciary to question the legitimacy of any act 
of parliament. That is one of the sad consequences of a 
false theory. 



The Government of Ohio. 

The government of the state of Ohio is founded upon an 
entirely different theory. We belong to the other school, 
which holds that civil power comes from God directly to 
the people, and that all political power is thus inherent in 
the people ; that to them belong originally all legislative, 
all judicial, and all executive power ; and that when they 
meet and organize a government and delegate to it, not 
political power, but simply the temporary exercise of it, 
subject to revocation, and assign the exercise of that power 
to three different departments, viz., legislative, executive, 
and judicial, those departments are each co-ordinate with 
the others ; that is, of equal rank, order, station, dignity, 
and authority. In the state of Ohio the judiciary is not, as 
in England, the creation of the legislature ; it is not sub- 
ordinate to it ; it is not the creature of the legislature, but 
of the people ; and it owes its allegiance, not to the legis- 
lature, but to its creator, the people. Our judiciary is 
not bound by the act of the legislature, as is the judiciarj^ 
in England. The first and most important duty of our 
judiciary is, not to obey unqualifiedly the acts of the 
legislature, but to examine them, and declare whether or 
not it will acknowledge them to be valid acts, — whether, in 
passing them, the legislature had or had not kept within 



THE STATE OF OHIO VS. THE KEV. PATEICK F. QUIGLET. 71 

the scope of its legislative power. The judicial department 
is bound to do this. That is principally what it is made 
for. The people look to the judiciary to protect them from 
the legislature ; to watch that the legislature shall not pass 
the bounds set upon it by the people, as shown in the 
memorandum or document setting forth what powers the 
legislature shall have. 

The scope of legislative power of the Ohio legislature is 
a much smaller circle than that which surrounds the pow- 
ers of the politically omnipotent body known as the Eng- 
lish parliament. The people of Ohio in 1802 had not been 
very long in the possession of political sovereignty. They 
had to fight very hard to get it, and having at last obtained 
it, they did not propose to surrender it to any person, cor- 
poration, association, legislature, or anything else. They 
undertook to say that they would be the parliament them- 
selves, and that their legislature should be simply a par- 
liamentary committee, with power to send for persons and 
papers, and to make such rules and regulations, within cer- 
tain limits, as might be necessary for the preservation of 
order and the proper transaction of business. And they 
appointed a legislative body upon that plan. When the 
people met again in 1851, they still further clipped the 
wings of that legislature. They would not leave it too 
much power for fear it might rise so high as to forget the 
people from whom it sprung. They had a wholesome fear 
of their own creation. They would not trust it too much. 

They would not trust it to saj^ who should be eligible 
to seats in its body, nor when they should be elected ; nor 
when their terms of office should begin ; nor to hold iudi- 
vidually any public money for disbursement ; nor to de- 
clare themselves what majority should be sufficient to pass 
a law ; nor to give a fellow-member a right to record his 
protest against its acts ; nor to say by mere majority vote 
when its sessions should be public ; nor to adjourn as they 
felt inclined ; nor to determine by ordinary vote whether a 
bill should be read or not ; nor to be free to describe thcii 



72 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY, 

bills by sucb titles as they pleased ; nor to say bow laws 
might be amended ; nor to elect a presiding officer with 
freedom as to signing bills ; nor to fix the style of the en- 
acting clause of their laws ; nor to be appointed to offices 
created by themselves ; nor to &x unqualifiedly the salaries 
of all officers ; nor to draw money from the treasury except 
in a certain way ; nor to take more than two years' supply 
at a time ; nor to say how impeachments should be 
tried ; nor to say how conviction on impeachment 
should be had ; nor to be free from impeachment in 
office ; nor to fix the time of their sessions ; nor to say how 
far laws shall operate ; nor to say how their laws shall take 
effect ; nor to exercise appointing power except as per- 
mitted ; nor to say how the vote should be taken on 
the appointing power ; nor to say when retroactive 
laws might be passed; nor to legislate in a certain way 
about contracts ; nor to say what new counties might be 
created ; nor to change absolutely any county line, nor to re- 
move absolutely any county seat, nor to run a county line 
through a town or city ; nor to vote themselves perquisites ; 
nor to grant divorces ; nor to say who may vote at elec- 
tions ; nor to say how votes may be cast ; nor to say how 
certain school funds may be spent ; nor to contract debts 
beyond a certain amount ; nor to loan the credit of the 
state to any individual, association, or corporation ; nor to 
interest the state in any stock company ; nor to make the 
state assume any county debts, nor any city debt, nor 
any town debt, nor any township debt, nor any corpora- 
tion debt ; nor to authorize any county, city, town, or town- 
ship to own stock in any company ; nor to raise money for 
or loan its credit to any stock company ; nor to say in what 
way it will pay state debts ; nor to say how public works 
shall be managed ; nor to say who shall be of the militia ; 
nor to say how militia officers shall be chosen ; nor to say 
when county officers shall be elected ; nor to say who may 
be elected sheriff ; nor to fix term of office of township offi- 
cers ; nor to say when appointment of its members may be 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEl. t6 

made ; nor to say of how many members its body shall con- 
sist ; nor to say whether poll-tax shall be levied ; nor to 
say how taxes shall be levied ; nor to make internal im- 
provements ; nor to pass any special act conferring cor- 
porate powers ; nor to fix the liability of stock-holders ; 
nor to say who may be appointed to office ; nor to allow 
extra compensation, nor even to vote themselves postage 
stamps. 

The people of Ohio seem to have been very careful as 
to how far they would trust their legislature. Are we to 
believe that the people who would not trust its legislature 
with a box of postage stamps would entrust to it entirely 
their personal liberties ? No ! These careful people of 
Ohio left no doubt as to that point. The first thing they 
did was to withdraw from the legislature all power to limit 
natural rights to liberty except in case of punishment for 
crime ; all power to dispose of property without compensa- 
tion ; all power to deprive of life without consent of the 
jury, and absolutely all power to interfere with rights of 
conscience without any condition whatsoever. 

And still they would not trust their legislature, even 
with all these rights enumerated and all these reservations 
expressed ; but to be able to feel perfectly safe, they added 
an all-comprehensive clause — in words as follows : " This 
enumeration of rights shall not be construed to impair or 
deny others retained by the people, and all powers not 
herein delegated remain with the people." 

Therefore, a judge in Ohio, acting under the constitu- 
tion of 1851, may not properly say, as to an act of violation 
of natural rights, that it is a matter for the legislature to de- 
termine whether or not such a law was necessary or proper, 
and that he will not interfere with the judgment of the 
legislature in the matter. Of course, if the legislature had 
power, that ends it ; but that is the very thing which the 
court must always first decide, whether or not it did have 
power. 

Now under the constitution, all natural rights are re- 



74 THE STATE OF OHIO VS, THE EEV. PATEICK F. QUIGLEY. 

served. All attempt by the legislature to abridge natural 
rights is forbidden except as in certain cases especially per- 
mitted under certain circumstances. I trust I have shown 
that control of the education of children is a natural right 
of the parent. 



Two Important Questions. 

We have then two questions : 

First. — Does the law in this case invade that right ? 

Second. — If it does, what authority is there for so doing ? 

As to the first question : If a parent has the right to 
control the education of his child, then his neighbor will 
have no right to take control of the age at which that in- 
struction shall begin, of what it shall consist, wdien and 
where it shall be given, nor for how long it shall continue. 

The act in question does undertake to do all these things; 
it says instruction shall be given when the child is seven 
years of age and continue until fourteen shall include certain 
branches, and that failure of the parent to send his child to 
some public or private school, in accordance with the law, 
may be punished by fine or imprisonment. There can be 
no question that this law is an invasion of the natural 
right. 

"We come, then, to the second question : Has the legis- 
lature of Ohio the right to do this ? 

The act, being in violation of natural rights guaranteed 
by the constitution, must be set asid^, unless it can be 
shown that there is clearly a:_d unmistakably some author- 
ity in the constitution for such legislation ; that there is 
something in the constitution which shows that the people 
intended to permit such legislation. 

Now the constitution sa3^s nothing on the subject 
directly in that part of the document relating to education^ 
Therefore it is not out of the education clause that this 
right of the state to control education can be evolved. 



THE STATE OF OHIO VS. XHE KEY. PATRICK F. QUIGLEY. 75 

» On what principle, then, may the state claim this right ? 
I fancy the most solid basis on which it can be put is the 
claim that it is the duty of the state to maintain its exist- 
ence, and that it has, therefore, the right to do all things 
necessary to protect itself against all dangers ; that educa- 
tion is necessary, therefore, etc., etc. 

I distinguish. That the state has a right to maintain its 
existence on the lines on which it was organized, I admit. 
That the state has a right to maintain its existence on any 
other lines than those laid down for it, I deny. If the 
original lines are found to be faulty, the architect may 
design anew, but the delegated authority may not, of itself, 
declare the original lines defective and order new ones. If 
a different scheme of existence is desired, it must be consti- 
tuted anew, there must be a new constitution of powers, a 
new delegation of authority. The state is not the organiza- 
tion which the people have effected, but it is the people 
themselves existing in a state of organization. The people 
have a right to continue to exist in that state of organiza- 
tion. They have a right to maintain that organized condi- 
tion against outside aggression, as well as against internal 
revolt. That organized condition was not originally the 
work of the people themselves. They were placed in that 
condition by their Creator. Without any act of their own 
will, they found themselves living in a certain region of 
country, with a spontaneous, natural, and mutual recogni- 
tion of the existence of certain individual rights. It is only 
In these very late days of the world's history that they have 
begun to make written memoranda among themselves as to 
what those rights are, or in other words have begun to 
adopt written constitutions. But even when a wi-itten con- 
stitution has been adopted, it does not follow from that 
that a new state has been created, in the sense that a new 
civil power, authority, or government has come into exist- 
ence. The power, authority, or government was there 
before, in a, different state or condition. It exists after- 
ward in a new state or condition ; therefore, when we say 



76 THE STATE OF OHIO VS. THE Ri;Y. PATHICK F. QUIGLEY. 

that a state has a right to maintain its existence, we can 
mean no more than that the peojDle there have a right to 
continue to live in such organized state as is in conformity 
with the natural law of their being. 

They may not themselves dispense from any part of the 
natural law, because they have no control over this natural 
law. It is a law imposed upon them, not a law proceeding 
from them. Onh^ the giver of that law could dispense from 
it. If the giver thought it for the good of the civil society 
that a certain principle of this natural law should at a 
certain time be dispensed with for a longer or a shorter 
period, he might so dispense. It seems he did dispense as 
to the matter of the multiplication of the species at certain 
times because of the necessity of the case ; as to the matter 
of marriage, under Moses, because of the hardness of the 
people's hearts ; that he revoked these disj)ensations later, 
when the necessity ceased, and as to the natural laws in 
the material world, we know that he has in many times 
and places dispensed from them in numerous instances, 
in what we call a miraculous manner ; but men themselves 
have no right to dispense from these laws— therefore, there 
is no power in the legislature to limit any of the natural 
rights of man simply on the plea that in their opinion it 
would be for the public good. That would be too vague. 
That would leave the liberties of the people dependent upon 
the mere opinion of the accidental majority of the hour. 
The people may never abridge these rights, all they may 
do is to recognize that the giver of these rights instituted 
civil society, and declared that men in societ}^ who violated 
those rights should forfeit as to themselves the right they 
had thus violated as to others ; and to those who recognize 
that doctrine, power is given to judge of the circumstances ; 
to declare when the forfeiture has been incurred, and to 
apply the penalty. 

That is what the right of civil government means. It is 
not the right of men to govern as they may deem best for 
society, but to govern as God has declared society ought to 



be governed ; and tlie fundamental principle of that declar- 
ation is that natural rights shall be respected and never 
treated as non-existent, except where, in accordance with 
the reason of this law itself, such rights have been really 
forfeited. 

It is a very delicate thing to declare when such a for- 
feiture has been incurred. Did the people say they would 
leave the determination of such vital questions to a mere 
majority of that unstable body known as a state legislature ? 
No. Did they say they would leave it to the tumultuous 
debate of a mass-meeting? No. They proceeded as to 
these things with a circumspection worthy of the matter in- 
volved. They ordered that in each locality one man should 
be selected as a guardian of those liberties. He should be 
chosen from a select body of men, all of them learned in 
the law, but he, chosen not for his learning alone, but also 
for his wisdom, and above all for his integrity. His office 
was exalted, his person declared sacred, not to be touched 
by unwarranted assault at the peril of death, his badge, 
the ermine fur, borne by a creature so sensitive that the 
slightest strain upon it caused its death. Only to the 
incumbent of that office did the people trust the keeping of 
these, the dearest of their earthly rights. That office is 
held here now by your honor, and upon your honor, and 
3^our honor alone devolves now the duty of declaring 
whether the legislature in this case had authority to abo- 
lish the natural rights of parents in the matter of the edu= 
cation of their children. 

Inalienable KightSo 

ToUE HONOR : I know that inalienable does not mean in- 
amissiblc ; that an inalienable right may be an amissible 
one, while an inamissible one can never be alienable : that 
though one have a right which he may not transfer to an- 
other, he may nevertheless forfeit the right as to himself. 

I know that for the peace and good order in society, 



78 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

even some inalienable rights may be forfeited, and that 
even a man's inali enable rights may be enjoyed only under 
regulations whereby he will not improperly injure his 
neighbor, and that the state, as agent of the civil power, 
may in some cases declare their forfeiture, and in some 
cases fix these regulations, but there is a limit as to how 
far the state may go as to declaring these forfeitures, and 
as to establishing these regulations. 

The state must prevent disorder, and may therefore 
make such regulations, even in abridgment of natural 
rights, as are necessary for the preservation of order. Men 
have an inalienable right to live, but they may not hurt or 
murder others. The state may punish for murder, but not 
for hate. The state must protect citizens in the proper 
enjoyment of their individual rights, and may therefore 
make such regulations, even in abridgment of natural 
rights, as are necessary for protecting individual rights. 
Men have an inalienable right to rejoice and be glad, and 
to give expression to their feelings of content, but they 
must not improperly disturb the peace and quiet of others. 

Men have certain duties to perform, and if they fail, 
neglect, and refuse to perform those duties, the state may, 
in some cases, punish for such failure, neglect, and refusal, 
but not in all cases. 

The parent is bound to feed and, clothe his child. If he 
fail, the state may perform. He is bound to educate the 
child, to give it instruction in religion and morality. If he 
fail, the state may not perform. Why the distinction ? 
Several reasons : 

1. The state official can see whether the child has 
proper clothes or not, and judge whether or not he has 
sufficient food. 

2» The state can supply clothes and food if the parent 
has failed to do so, and can know that it is giving proper 
food and proper clothes, and therefore it may so supply. 

3. The state official cannot tell whether the child is" 
receiving proper religious and moral instruction, and, 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 79 

therefore, cannot say whether or not the parent is failing 
to perform his duty in that respect. 

4. The state cannot furnish religious and moral instruc- 
tion, even if it knew the parent had failed to perform in 
that respect, because the state has no religion in store for 
distribution. Neither can it command a supply when 
needed. 

5. The state can give instruction in secular knowledge, 
but it may not do so except where the public good clearly 
requires it, as in the case of military instruction for the 
army or navy, or any matter connected with public defence, 
and even then only after the child has first received a 
proper general education in religion, morality, and knowl- 
edge, and also, even then, only in such a way as will not 
interfere with the rights of conscience. 

I speak thus of a state which claims to have no union 
with any church ; of a state in the American Union ; a 
state which acknowledges that it has no right to interfere 
in religious matters; in matters where there is question 
only of man's moral obligations toward his Creator, toward 
himself, toward his family, or toward societ^^ by reason of 
the moral law, independent of civil enactment; a state 
which recognizes that there are such purely moral obliga^ 
tions. I claim that such a state, as a civil authority, ma;^ 
not undertake to compel a citizen to perform all his moral 
obligations. Although it be a duty for parents to educate 
their children, and although it be an injury to the state for 
them to neglect to perform that duty, yet it does not follow 
that the state may therefore undertake to compel that per- 
formance by general legislation, fixing a minimum standard 
for all. The state alone is not competent to fully govern 
society. If it were, it could dispense with God. It could 
be independent of God. It could get along without any 
help from God. And that is exactly what advanced secu- 
larism claims to be able to do. Advanced secularism 
denies the created state of man; denies the necessity of 
God, and asserts original authority in the state, but that 
kind of secularism is at war with the principles on which 



80 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

the states of tlie American Union are founded. If secular- 
ism were true, then indeed would the state have power to 
do all things it considered necessary for its welfare, but, in 
that case, there would be no natural rights of man, no in- 
dividual human liberty, no liberty beyond that the power 
of the state chose to permit. That is not our theory. Our 
theory is that God is the author of society, its sovereign 
arbiter, custodian, protector, and guide. It is a great injury 
to the state for a parent to bring up children in ignorance 
of moral duty, in ignorance of the distinction between right 
and wrong, and, if that ignorance becomes prevalent in the 
community, the state will be destroyed. Yet not even in 
self-defence may the state undertake to directly dispel that 
ignorance, because the state is not competent to teach 
morals. If then the state must tolerate ignorance of 
morality, although such ignorance endanger its existence, 
and must tolerate this ignorance because it dare not inter- 
fere with the control of the family, it does not help things 
at all for the state to provide intellectual culture alone for 
those persons with an undeveloped moral sense. It only 
makes those persons more dangerous to society. But this 
is merely the argument ab inconvenientia. I will not stand 
on that alone. I insist on the principle that there is a 
limit to state interference ; that while the state may aid the 
family to discharge its moral obligations, it may not under- 
take to compel such performance by general law beyond 
restraining from outward improper physical acts, or in 
supplying corporal matter needed for the physical life of 
the child. If it ever pass that line it assumes control in 
spirituals, and thus infringes, upon liberty of conscience, 
making the people not citizens but slaves of the state. 

Our state trusts religious education entirely to parents, 
encouraging religion by exempting church property from 
tax, protecting worshippers from disturbance, and some- 
times, as heretofore right here in Ohio, voting money in 
aid of church support. It may also very well trust secular 
instruction to parents, encouraging it by exempting school 
property from taxation, protecting teachers from disturb- 



THE STATE OF OHIO ^;<§. THE REV. PATRICK F. QUIGLEY. 81 

ance, and voting money in aid of instruction. A bad father 
may wish to live off the wages of his young children, and 
keep them from school for that purpose ; but the state may 
forbid their employment by others and thus avoid that dif- 
ficulty, and otherwise protect children against improperly 
enforced labor. A widow unable to compel her boys to 
attend school may invoke civil aid, and thus that objection 
may be avoided ; and in a reasonable way all other difficulties 
may be met, and a parent notoriously neglecting his duty 
to his children may be compelled to do it in certain cases ; 
but, even though some peculiar cases could not very well 
be reached, still it is not a duty of civil government to sea 
that all moral obligations are properly performed. Some- 
thing must be entrusted to liberty, something to religion, 
something to the grace of God. 

Those who would compel all men to do all their duty 
by force of civil law are not only at war with the theory of 
our government, and therefore guilty of actual treason to 
the state, but are also at war with the whole scheme of 
creation. God wished all men to discharge all their duties, 
and He could have compelled them to do so, but He gave 
them free-will ; not freedom to do evil, but He did not 
compel them to do good. The great glory of man consists 
in his willingly doing good and voluntarily avoiding evil. 
The state has no right to try to do more with men than 
God chose to do. When it destroys liberty it inaug- 
urates tyranny. God gave to the state all power necessary 
to preserve order. The state has no right to restrain per- 
sonal liberty beyond what is necessary for that purpose. 

The state may not control education, because education 
includes moral training. The state may not control instruc- 
tion, except as shown, because to do so touches rights of 
conscience. ^ 

Education and Instruction, 

There is a difference between education and instruction, y 

Instruction is telling a child the truth about things : in 



82 THE STATE OE OHIO VS, THE REV. PATRICK E. QUIGLEY. 

religion, about doctrines ; in morality, about duty ; in 
knowledge, about facts. Education is developing the moral 
sense whicli prompts to the performance of duty. Educa- 
tion includes instruction — instruction is only a part of 
education. Instruction may never properly be given apart 
from education until education is reasonably completed. 

The state may not invade the natural rights of the 
parent and prescribe as to instruction, even as to secular 
matters, unless there is some clear public necessity for so 
doing. 

The mere claim that the majority would be benefited 
by so doing, would not be sufficient, even if it were true. 
The majority has no right to benefit at the expense of the 
individual, simply because of the benefit. But they say it 
would benefit the children. How do they know that? 
How can they tell ? How do they know tho^t it is going to 
benefit a boy to take him from a mountain home, where he 
might possibly live and die happily, without ever seeing a 
book, and fill him full of knowledge and deviltry at a city 
school, with the possible result of living a rascal and dying 
a debauchee ? How do they know ? Who are they that 
they would pluck the fruit of the tree of knowledge, and 
force little children to eat ? How do they know they are 
going to benefit them ? But they will try, anyway ! "Will 
they? Who gave them the right to try? Who gave the 
lives of these children into their charge ? Who gave them 
the right to undertake to form their minds, to shape their 
souls, to direct the lives of these children ? They say they 
will take these children away from the parents, because to 
do so will benefit the children. But how about the parents ? 
Have they no rights ? Those parents have had the cost 
and care and sacrifice of bringing those children into the 
world, of feeding, clothing, and training them up to the age 
of 8, 10, 12, or 14 years. The children may be needed at 
home to help their parents, or to help care for younger 
children. 

What right have the neighbors to go into that home and 



THE STATE OF OHIO VS. THE RET. PATRICK F. QUIGLEY. 83 

break up tliat family, and destroy tlie domestic relations 
there, simply because they believe it will be for general 
good to do so ? 

What proof do they give that it will be for the general 
good? Remember, even though they should prove that it 
would be for the general good, that is not a sufficient reason 
for depriving the parents of their rights. It might be for 
the general good to divide alh fortunes over a million each 
among the churches of the country annually. Will they, 
for that reason, say it may be done ? 

But what proof do they give that compulsory instruc- 
tion in secular knowledge will be for the public good ? 

Such instruction of itself alone gives no assurance of 
benefit to the state. Our constitution says it is religion 
morality, and knowledge that are indispensably necessary 
to the state — in other words, the sense of duty. The plea is 
that secular knowledge alone will bring this sense of duty. 
But that is absurd. 

Herbert Spencer, the god of secular philosophy, laughs 
at this claim. " What possible connection," he exclaims, 
" can there be between the knowledge that certain clusters 
of marks on paper mean certain things and the getting of a 
higher sense of duty ?" 

The Rev. Mr. Hall, a Massachusetts Protestant clergy- 
man, humorously put the same idea the other day in a 
sermon in these words : "Give every child a high-school 
education and you have abolished roguery. Teach a child 
that the square of the hypothenuse of a right-angled tri- 
angle is equal to the sum of the squares of the other two 
sides, and after that the child will never lie. Teach the 
little boy that water is H^O, and after that we need never 
fear that he will use anything but H^O as a beverage !" 

The claim that the state must compel secular knowledge 
because thereby good citizens will be secured, is so prepos- 
terously absurd that I fancy it needs no special refutation. 



84 THE STATE OF OHIO VS. THE HEY. PATRICK F. QUIGLEY. 



VI. 

Paeental Conteol of Education an Exclusive Eight. 

I cited some authorities to show that the parent has a 
natural right to control the education of his child. I wish 
now to cite some authorities in support of the j^i'oposition 
that this right of the parent is exclusive : in other words, 
that the state has no right to pass general compulsory 
education laws. 

It is only lately that these laws have been passed in 
this country, and this is the first case that has been brought 
before any of our courts to test the matter. Therefore we 
must go for our authorities to those writers who discuss 
the general principles under which such laws may or may 
not be founded. 

Leo XIII., in the same encyclical from which I have 
already quoted, after sajdng that to the parent b^^longs the 
education of the child, goes on to say : " It is therefore of 
strict obligation upon the parents to vigorously repel all 
the unjust violence sought to be done in this matter, and 
to preserve this exclusive right they have over the education 
of their children." 

I now cite the following from Taparelli : 

"No. 1570. What ought to be the influence of the 
state over private schools? 

"Private education is within the competency of the 
domestic circle, because it is the chief object of the per- 
petuity of matrimony. If the greater society could have 
the right to step in and regulate private education, it would 
be either to regulate it for the jDublic good or to correct 
disorders existing in the family. 

" The first reason does not hold good, because all proper 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 85 

education tends per se to the public good, wliicli is 
order; wlience the state cannot control private education. 
Moreover, right order requires that this right be reserved 
to the parent against all others ; this is an inalienable right, 
because connected with duty. The state, therefore, has 
no right in a normal condition to arrogate to itself private 
education. I say arrogate; because to open up to youth 
safe fountains of truth and honesty, to offer to parents 
unto this end a faithful helper vouched for by public 
guarantee, without compelling them to use it, would not 
be usurping the right to educate, but only encouraging 
education, — a most just procedure in a government that 
advances." — Taparelli, sec. 1570, vol. ii. p. 494. 

This was written by Taparelli away down in the king- 
dom of Naples over fifty years ago, in the realm and under 
the patronage of that king whom so many enlightened men 
speak of only as King Bomba; and yet there is a doctrine 
of justice, intelligence, and liberty worthy of imitation by 
the most advanced of our American States. 

Prepare the feast of public education ; spread the tables, 
heap up the viands, make them as appetizing as possible ; 
but do not force people to eat if they do not like the 
food. The state furnishes but one article of diet, you 
know, — a very good one of its kind, and very elegantly 
served; but still it is always the same. It has no variety, 
no condiments, no accessories. Many people find it insuf- 
ficient to sustain life. They prefer their own home diet. 
Do not force them to starve at the tables of the state, and 
remember always that the state has no right to do so, even 
though it is thoroughly convinced that the food is better 
than the people have at home. 

Further writing on this subject, Taparelli says : " I do 
not see how one can take from the parents the early edu- 
cation of the child without offending against the natural 
law. Whence I am persuaded that Gioberti, in recom- 
mending publicity (of education), intends not indeed to 
establish it as compulsory, but only to so improve public 



86 THE STATE OF OHIO VS. THE KEV. PATEICK P. QUIGLEY. 

teaching that the parents wontcl spontaneously seek the 
advantage of such education in favor of their children. 
And, in fact, if it were allowed to society to so restrict 
in this matter the parental rights, how could the most 
perfect of societies, tending to the spiritual end, infallible in 
its teaching, holy in its laws, universal in its extension, 
have prohibited the robbing infidel fathers of their children 
in order to baptize them and save them. And indeed this is 
the fact : the church has reproved the ill-informed zeal of 
those who took from infidel parents the education of their 
children. How, therefore, can we grant to the public 
society, instituted for temporal good, that which was re- 
fused even to the religious society, established for the 
spiritual and eternal good?" — Taparelli, vol. ii. pp. 510, 511. 

Your Honor, I do not expect that in the decision on this 
point you will be influenced by any argument I may make 
based upon the claim that secular instruction does not of 
itself protect the state ; neither will you be influenced by 
argument or assertion that it does. You will not base 
your decision upon any theory on that subject either way. 
You will say education is either a parental right or it 
is not. If a parental right, it is so by natural lav^ ; if by 
natural law, it is inalienable ; if inalienable, it cannot be 
disturbed, unless there be distinct provisions in the consti- 
tution showing how, when, and where it may be aliened. 

Such provisions are inserted with regard to the natural 
rights of life, liberty, and property, and those natural rights 
may be curtailed in consequence. 

There are no such provisions with regard to the natural 
right of the parent to control the education of his child; 
therefore that natural right cannot be disturbed by the 
Legislature of Ohio so long as the present constitution 
remains in force. 

Your Honor, I have now finished my plea, — the first I 
have had the honor to make in any court in the state of 
Ohioj although right here in Northern Ohio is where 
I spent my years from infancy to early manhood. I deem 



THE STATE OF OHIO VS. THE EEY. PATEICK E. QUIGLET. 87 

myself fortunate in having liad to make this plea before a 
judge so just and at the same time so indulgent. I know 
it is always the right and sometimes the duty of the court 
to limit the time counsel may consume in argument. It is 
because I recognize this that I am grateful for the patience 
and attention with which your Honor has listened to the pre- 
entation of these views as fully as I desired. If your Honor 
can now declare that these views are also the views of the 
court, my satisfaction will be complete. 



EEMAEKS OF ME. BAEBEE. 

May it please the Court and Gentlemen of the 
Jury : It is a well-known principle of criminal practice that 
when an exception is a part of the definition of an offence, 
the indictment should contain an allegation showing that 
the particular case or offence charged is not within the 
exception, and the state should prove as a part of its case 
that allegation. In this case Ave have no such burden. 
The proviso as to the seating capacity is no part of the 
offence. The question is not very material, because the 
record in this case shows that there was abundant seating 
capacity when the Grand Jury presented this indictment. 
The record shows that in the month of April, 1890, there 
were three thousand vacant seats, this being the difference 
between the average daily attendance and the seating- 
capacity. If the monthly enrolment of April be taken as 
a basis, there were during the month of April, 1890, two 
thousand vacant seats in the city district. 

The second point I call your Honor's attention to, is 
the construction we give to the word " Principal " here : " It 
shall be the duty of all principals and teachers of all schools, 
etc . . . ." It is our position that the duty enjoined by 
this statute is required of all principals and teachers of all 
schools, and that the word "Principal" under this law 
should have a broad and liberal construction. I would not 
claim too broad a construction, but a liberal and enlight- 
ened construction of those words. That word, " Princi- 
pal," we hold to mean anybody who has charge of, or 
control of, a school, who is at the head of it. I do not 

88 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 89 

care whether he be called pastor, in church circles or in 
school circles, whether he be called superintendent, or 
principal, or teacher — any power, any man who has the 
power to prevent the making of that report, or to cause it 
to be made according to an enlightened and fair construc- 
tion of that section violates the act. Our holding upon this 
question would be this : A principal of a school within the 
meaning of the law — within the eyes of the law — is that 
person, that power which has general oversight over a 
school, that person who is the general head of the school. 
If in this particular case the defendant was that power, 
was authorized to make that report or cause it to be made, 
or had the right to prevent the making of it, and did 
prevent it, he is guilt}^ under this act. When we reach 
that ]power, whoever he may be, we have reached the right 
man under that section. The common law is not hemmed 
down to any technical rules. Take the statutory offence 
of embezzlement, purelj^ a statutory offence : the statute 
says that all agents and servants and clerks of any emjDloyer, 
etc. The words servant and agent and clerk have been 
construed by the courts of this country, and the law is in 
such shape that Bishop, in his work on Criminal Law, says 
that the pleader is almost at libert}^ to elect whichever 
word he chooses, and use it in charging the offence. The 
pleader uses agent or servant or clerk, almost at liberty to 
follow his own taste in the matter. It is that rational and 
progressive construction that is characteristic of the com- 
mon law that we argue for. In the Supreme Court of 
Ohio we have a case where the Grand Jur}^ charged a man 
with embezzling a sewing-machine, and charged him to be 
a servant, and the Supreme Court held that he was properly 
charged as a servant. This is not only a good illustration 
of statutory construction, but an analogous one. 

Me. Hued. — Q. How was he employed ? 

Me. Baebee. — By the week or by the month, on a salary, 
selling sewing-machines through the country with a horse 
and buggy, and the pleader charged him as the servant of 



90 THE STATE OF OHIO VS. THE REV. PATRICK E. QUIGLEY. 

tlie sewing-machine company. Sucli construction is now 
given to the word agent, servant and clerk that now there 
is hardly any employe of any person that cannot be 
brought under one of those words, and as I said before, it 
is nearly immaterial which word the pleader takes. Another 
illustration of that spirit of progressive construction of 
the common law is the construction given to the word 
" Trustee," in the history of its use. When that relation 
was created, when that person, " The Trustee," was 
brought into existence, his duties were very carefully 
defined, and the word itself had a very technical significa- 
tion. There has come down, however, by the construction 
of enlightened judges and tribunals, so much upon this 
subject that we have now got to the point Judge Ranney 
speaks of in one of his own masterly discussions on this 
subject, that a trustee is anybody whom a court of equity 
can come at like a roaring lion and say, " You have got 
something belonging to another, and anybody who has in 
his name or control that which belongs to another is a 
trustee within the meaning of the rules and laws of 
equity." This is the kind of construction we think that 
should be given to that word principal. The evidence in 
this case shows the defendant is pastor of that parish, and 
the evidence shows that he is within the eyes of the law the 
principal of that school, because that will of his should 
have produced that report. He had the authority to pro- 
duce it. He refused to produce it. That is all we claim 
on that point. 

The other point is an important one, your Honor, I 
presume it will be thought that it does not arise in this 
case, but it does to a certain extent. The provision of the 
statute is : " And the said clerk shall furnish blanks for said 
purpose." The position of the state is that all that is re- 
quired of the officials charged with the enforcement of this 
law is that they shall have these blanks on hand subject 
and free to the call of anybody charged with the duty of 
furnishing this report. We have proven in this case a de- 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 91 

livery of tliese blanks, but we do not desire any such law 
or sucli construction of that act. It is important to us, for 
the reason that we are now a year from the framing of this 
indictment, and only in the Common Pleas Court. It may 
be, and it is quite likely, that the officials charged with the 
execution of this law may not want to wait for the outcome 
of this case four or five years. It is an admitted fact by 
those in charge of that duty, that unless the law can be 
enforced, unless it is to be enforced, there is no use of 
keeping a truant ' officer drawing pay from the public 
treasury. It is very important that we know, and that the 
authorities know, what the real meaning of that is, and we 
hold that the jury should be charged in this case^al- 
though we have proven further than that — that the state 
is bound to show and only bound to show that we had on 
hand those blanks and they were ready at the clerk's office 
for distribution to anybody who is charged by that act with 
certain duties to perform. 

I desire to say nothing further to the Court. The rest 
of my remarks, gentlemen of the jury, will be addressed to 
you. If you get a construction from the Court of this law 
such as the learned Judge Dunne requested the Court to give 
you, you will have very little to do. For, gentlemen, it is 
a proposition that we must all start with, that the Court 
lays down the law for all cases tried in Ohio to a jury, and 
the jury are manifestly bound to follow the law. Their 
province is to try simply the facts. If lawyers disagree, 
as you see on law questions they do, the Court is the tri- 
bunal vested with the authority of settling them, and the 
Court has decided so far the points raised between us. 
So, should you get instruction that the Legislature of Ohio 
had no power to pass the Truant Law, and an instruction 
that you should return a verdict of '' Not guilty " against 
the defendant, your duties will be simple indeed. But I 
do not think that you will get any such instructions. I 
believe you will be told, gentlemen, that if this defendant 
was at the head of that school or had such power and 



92 THE STATE OE OHIO VS, THE REV. PATRICK E. QUIGLEY. 

aiitliority over it that it became his duty to make those 
reports, or cause them to be made, and he neglected and 
refused to do it, if you find that from the facts, you will 
find a verdict of "Guilty." Now I say we are bound to 
follow the law as settled in this case by this Court, and it is 
on the assumption, of course, that we get the law in some 
such shape as I have argued it to the Court here that I can 
say a few words to you. I do not have any fear, gentlemen, 
but what you will have to pass upon the facts of the case. 
I have not the least fear but what you will have to find out 
whether under the law the defendant is at the head of that 
school, and whether if at the head of that school he 
neglected and disobeyed the law in filling out those blanks. 
We had a long argument and a very learned one upon the 
question whether the Legislature had a right to pass this 
important act. As it is a new act, and as I am going to say 
a word to you in regard to its provisions, I will say in 
starting that one of the principal fallacies of the gentle- 
man's argument is that the act itself does not undertake to 
interfere with that control which he says the Legislature 
had no right to interfere with, and it is the old discussion 
of a century ago over the fact of why it was that a fish 
weighed in the water more than it did when in air. They 
spent a great many days discussing that and trying to find 
out the explanation of it, and finally one said, " Is it true, 
does it ? " They experimented and found that it did not. 
I ask you candidly if you think this act interferes in any 
way with religious freedom and liberty of conscience ? It 
does not interfere at all with the right of parents to the 
education of their children in any manner they may choose, 
if they will only educate them. The act provides that they 
may be educated at public schools or by parents, by any- 
body : it only requires that they shall be educated. The 
fallacy in assuming that it did is the trouble with the 
gentleman's argument, a small part of which was addressed 
to you, the greater part of which you have nothing to do 
with, because the law we are to take from the Court. An- 



THE STATE OE OHIO VS. THE EKV. PATRICK F. QUIGLEY, 93 

other fallacy of the geutleman's argument lies right here, 
and you do not need to be a judge to see it ; you need only, 
it seems to me, to have a common-sense view of things. 
The gentleman concedes that the State of Ohio has power 
to compel the parent to clothe and feed the child, but he 
denies the power of the state to educate those children so 
that they can feed and clothe themselves. It seems to me 
that the position he takes needs no answer. He concedes 
that the State of Ohio has the power to educate the child 
in the use of the sword or gun, because that is necessary 
for the state's preservation; the child can be taught a mili- 
tary education so that republican institutions can be pre- 
served, but the state, he says, cannot compel the education 
of the child so that the integrity of this government can 
be preserved without the use of the sword or gun. John 
Hancock, the State School Superintendent of Ohio, said, 
when this act was passed, that it was the most important piece 
of legislation enacted for the last twenty-five years. He did 
not state that strong enough. It is the most important act 
passed, crude though it is — it is a crude act — we have got 
to , prove by experience the working of it — it is the most 
important act passed since the first syllable of school law 
ever passed governing this territory. The first school law 
secured forever the right of free public schools and the 
encouragement of them, and is found in the ordinance of 
1787, and I would put that down as the most important. 
We have right here, and we are charged right here in this 
court-room, on the part of the Court with the construction, 
and on the part of the Jury with the finding of facts under 
one of the most important acts ever passed by the State of 
Ohio in educational matters. If it can be enforced, as I 
have no doubt it can, the day will come when there will not 
be a man on Ohio soil, unless he come from abroad or un- 
less he be born idiotic, who cannot read and write. That is 
why we have here an important duty to perform in looking 
carefully into the facts of the case and solving the question 
rightly. We have no question of religion or conscience in 



94 THE STATE OF OHIO VS. THE REV. PATRICK F= QUIGLEY. 

this case. There is not a thing of that kind in the case. 
We shoukt all bear in mind that the only thing to decide 
here is whether this defendant had the power or authority to 
furnish these blanks and fill in these names and ages for the 
use of the Board of Education and the Clerk thereof, and the 
truant officer, and, if he did, did he do it ? You will at once 
see, gentlemen, why it is necessary to know the names and 
ages and residences of these pupils, and all pupils attending 
private and parochial schools, in order to enforce the act. 
In the first place it requires the attendance of pupils 
between certain ages. It does not require the attendance 
of pupils at a public school, but it does require the children 
to get an education in some way. If the officers in charge 
of the enforcement of this law are unable, when they meet 
a child, to know whether he is attending the public or 
private or parochial school, how are they to enforce the 
law? 

Suppose Disher finds on the street or in a factory a boy 
thirteen years old, and he says," My boy, have you attended a 
school one hundred days ? " He says, "Yes, sir." "Where?" 
"At Father Quigle/s, at St. Francis de Sales." It is 
necessary for the officials charged with the enforcement of 
that law to know whether that is true or not. Was the 
defendant in this case — was he and is he under the law and 
within the eyes of the law a principal charged with this 
duty ? because you will be told b}^ the Court one thing, 
" that it is the duty of all teachers and principals to require 
the report to be made to the Board of Education." Is the 
defendant a principal of a school within the meaning of that 
law beyond all doubt, beyond all doubt whatever, beyond 
reasonable doubt ? The proof in this case shoAvs, gentle- 
men, in the first place according to the witness Eochford, 
who was teaching there at the time this question came up, 
that the defendant assumed to be the principal and assumed 
to be in charge of that school. You need not fear to rely 
upon witnesses who are as hostile to us as these witnesses 
who were taken out from that school down there. What- 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 95 

ever we got from them you can go into that jury-room and 
say is proven beyond any reasonable doubt. Eochford 
says Father Quigley's attention was called to those blanks, 
and he said, " I will settle that matter myself." Who is 
principal of that school within the meaning of the law? Who 
was acting principal ? According to good solid common-sense 
who was there acting as principal of that school ? The man 
who was afraid to do a thing, as Eochford was, or the man 
who said, "I will deal with that question," and who said 
later on, " Eochford is a mere teacher ; I am the man to 
make out those reports ; I am in charge of that school " ? 
We had two other teachers after Eochford on the stand, 
and for some reason or other we had the same proof from 
each one of them — " Each teacher is the principal of his 
own room " — a proposition that never originated with them. 
They got that into their heads from some outside source. 
I say they never invented that idea. According to 
their testimony concerning the duties they perform there, 
each teacher was teacher in his own room, and Father 
Quigley, according to their testimony — as hard as it was to 
draw it out — had charge of that school and has charge of 
it to-day. 

What do you think those teachers would do if the truant 
officer would go there and ask them for a report of this 
kind ? Have you any idea they would act the way the 
defendant acted, as though they had charge of that school ? 
Why, those teachers, Sisters Liguori and Berchmann, would 
not have said a word to the truant officer ; they would have 
just waived him away. That is all the authority they have in 
the matter. Eochford soon found out that he had no 
authority there, and he was told by the defendant (and that 
throws some light upon the case) to tear off the heading of 
those blanks and to use them as waste paper. I wish I 
had that blank here — there is one or two things there I 
want to speak of— the law requires the names and ages and 
residence of the pupils in a certain school to be furnished 
the Board of Education. I noticed that blank contained a 



96 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

place for putting the number of days present and the 
number of days absent. It would be proper for the state 
to require that, but we have not charged the defendant with 
that in this indictment, and I will say to your honor that 
all we claim to have proven in this case is the failure to 
furnish the names, age and residence of the pupils. In 
order to facilitate the enforcement of this law, the clerk 
can require the furnishing of other information. That is 
not charged in the indictment or proved in this case. I 
have spoken of it simply to call your attention that all we 
have charged the defendant with is his refusal and failure 
to furnish the names, age and residence of these pupils. 
We are required to prove beyond reasonable doubt what 
we allege, and that is the failure to furnish the age, names 
and residence. 

Mr. HuED : " Supposing the defendant had furnished the 
names, age and residence, would you claim you had the 
right to indict for failure to furnish the other informa- 
tion?" 

Mr. Barber : " With the allegation in the indictment 
that such other information was necessary in order to 
facilitate the carrying out of the provisions of this act and 
proof to that effect ; otherwise not. 

Now, I am not going to discuss whether the defendant 
wilfully refused to carry out the provisions of this act. 
That seems me to beyond all discussion. The defendant 
acted intentionally and without excuse and without even 
common politeness and without ordinary civility and cour- 
tesy in his resistance. The only thing I am discussing is 
whether we have proven this defendant in charge of this 
school. Coming to the testimony of the truant officer, 
Disher, what proof do you get as to whether this man was 
the principal of that scliooL Mr. Disher called upon de- 
fendant, talked about this report and about Rochford, be- 
cause the blanks had been left with Eochford, and the de- 
fendant said : "Eochford is but a common teacher ; I am 
the man to deal with that question." In court by his 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 97 

lawyers lie says lie is not a principal withiii tlie meaning 
of that act. Out there to Dislier, when he set himself up 
against the laws of the state, he said : "I am the man to 
deal with that question ; Rochford is nothing but a common 
teacher." " I don't choose to live up to the law of my 
country, and you may get out of my parish ; I don't want 
to see you again." That is like a man acting as though in 
charge of some school, as though he had present duties to 
perform, as though he had power to make report of that 
school. But his lawyers will argue to you I know, if they 
say anything to you, that he is not a principal within the 
meaning of that act. A strange position to take now ! If 
he had wished to take that position, why didn't he tell 
Disher, " I am not principal; I am the pastor of this church ; 
I have charge of the spiritual welfare of Catholics. The 
teachers will make out those reports for you?" But, gen- 
tlemen, let us take the testimony of Father McCarthy for 
a moment, and see where that will land us . We did not 
need it, but we got it. Here we have a man who is a pastor 
and has a school in the same city, in the same district, and 
under the same board and same boards that St. Francis 
de Sales school is under, and he says that the pastor 
stands in the relation of principal to the parochial school. 
Have you any reluctance in relying upon that testimony ? 
If you have, what would you rely upon ? These are Father 
McCarthy's very words. He was asked: "What relation 
does the pastor sustain to the parochial school ?" Answer : 
it Principal." Why were not other Catholic priests pro- 
duced who are in this same school district ? Why didn't 
they produce Father Hannin, who is under the same board ? 
Why were not the others produced ? Numerous pastors 
are among us. They are all under one organization, one 
board, all under the same bishop, all in the diocese of 
Cleveland. Yet all the enlightenment we have upon this 
whole question from the side of the defence is the enlight- 
enment that Father Kramer gave us. We called Father 
McCarthy. You will not ask the state to go further. 



98 THE STATE OF OHIO V.^. TJIE REV. PATRICK E. QUIGLEY. 

Whose testimony will you rely upon ? Father Kramer, or 
Father McCarthy ? Father Kramer hated to say that Dr. 
Quigley was the principal of that school, but he would not 
go to the verge of denying it. Of course he would not use 
the word " Principal," but those acts which make a man a 
principal he testified to. He finally was driven to admit 
that the pastor has charge of the school and within the 
meaning of this law, of this act. We have the testimony 
then of Father Kramer and Father McCarthy that accord- 
ing to their o'wn acceptation of things he is the man that 
the state should have reached for the violation of this law, 
and we have reached him. I am going to finish if possible 
this forenoon, so I will be a little briefer in some of these 
points. The only thing I have felt it necessary to discuss 
to this jury, is whether we have within the meaning of the 
law proven this defendant charged with those duties and 
those acts which make him the head and responsible head 
of that school. Now who is principal if he is not ? Let 
us see who is, if he is not. Some one is, some one must be. 
The other teachers were not afraid to make this report. 
They were under somebody. Anybody besides the de- 
fendant whom we have indicted ? If we had indicted Bishop 
Gilmour before his death, for the violation of this act, how 
long do you think we would stay in a court of justice? If 
we had undertaken to prove that Bishop Gilmour was 
charged with this duty or any othe-r man but the man you 
have indicted in this case, how long would we stay in 
court ? If anybody on this earth was responsible you 
have got him. We could not stand a second before this 
jury and this Court upon this proof if the indictment 
charged other than this defendant. I am willing to admit, 
if the gentlemen wish — that is what I get from their de- 
fence — that " Each teacher is the principal of his own 
room." I will admit thaf they could have all been jointly 
indicted together. I think that is the meaning of the law, 
because it says that it is the duty of all teachers and prin- 
cipals of all schools, public and private. But the fact that 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 99 

one man is guilty of an offence and is being tried for it, 
and another man is also guilty with him, is no defence. At 
the start I said to you, gentlemen, that we are to lay aside 
everything but the facts, the same in this case as every 
other. Every juror and every lawyer and every minister 
and priest and every parent has just as much right to his 
religion and his religious belief or his religious views as 
any other. All men are created free and equal in that 
respect. But we cannot lay aside in this case the facts 
that I have discussed before you. I urge upon you the 
necessity of investigating these facts under the charge of 
the Court, and finding according to the facts and law that 
shall be given to you a verdict here that shall be in accord- 
ance with the truth and the law of the case. That is all 
we ask for in the world. We have got an important duty 
here to perform in getting at this truth. Let us get at it 
according to the truth. 

It is necessary that we prove as we do in all criminal 
cases, and we desire to be charged with the burden of 
proving beyond a reasonable doubt, every essential element 
of this misdemeanor. "We are glad to assume this respon- 
sibility — glad we have brought this Jproof before you, and 
we think there is no possibility of your erring in your find- 
ing of facts. Brothers Eitchie and Hurd will probably 
have some reply to make as to the position we have taken 
here upon these facts in regard to the principalship of this 
school. I want to call your attention to the fact that the 
law uses general words, and we are not limited in our con- 
struction or proof to any technical, narrow, or small con- 
struction. It is one of the glories of our Jaw and especially 
of the English common law that it has that flexibility as to 
terms and such liberality and spirit of construction that it 
becomes as expansive as the air we breathe. It fits all 
cases. We have brought, however, the defendant in this 
case within a very narrow and limited construction of the 
word " Principal." 

I do not believe I have anything else to say. 



100 THE STATE OF OHIO VS. THE REV. PATEICK F. QUIGLEY. 

Judge EiTCHiE, during the afternoou session lield on the 
11th of May, addressed tlie Court on behalf of defendant, 
as follows : 

If the Coukt please : I do not design, at any great 
length, to address the Court upon the construction of this 
law. I may have occasion to do that as I proceed to the 
jury, upon a certain feature of it, in connection with mj 
argument ; but, as to the mairm propositions, upon the con- 
struction of this law, I design, and I am inclined to leave 
that to the counsel w^ho are to follow me. 

My objection to this law, if your Honor please, as a 
compulsory law, standing here in this forum, is not taken 
from a Catholic point of view, nor from a Protestant point 
of view, nor from any other than that which is jDeculiarly 
secular ; and without elaborating, I want to suggest three 
objections to this law. 
\ The first, as it seems to me, is that it overlooks, in its 

compulsory features, entirely the physiological facts known 
to every man of mature mind, that there are youth that 
are more mature in mind and body at the age of eight 
than others at the age of ten or twelve — better prepared 
to receive and assimilate instruction. But this law puts 
all upon a common level : it puts the genius and the 
dunce upon the same form in school, at the same age, re- 
quiring them to pursue the same studies for the same 
length of time ; and I say, it ignores entirely the fact — the 
physiological fact — that there are some children at the age 
of eight that are adapted to receive, understand, compre- 
hend, aind apply instruction to an extent and degree that 
other children are not capable of doing until years later 
in life ; and the idea of cramming, if your Honor please, 
the young and immature mind with lessons, requiring them 
parrot-like to repeat lessons, without understanding, with- 
out observation, without application, and without knowing 
the reasons and uses that the instruction is employed for, 
is in my judgment as hurtful to an immature mind unable 



THE STATE OF OHIO VS. THE REV. PATRICK E. QUIGLEY. 101 

to assimilate that kind of mental food — is as wrong as to 
cram the physical stomach with food unfit for assimilation 
to the j)hysical system. 

But, if your Honor please, another point, and this 
supplemental to the extensive argument that we heard on 
Friday and Saturday. 

There are some of the best minds of the present day 
that believe that early education should be abandoned ; I 
mean now this idea of even parents compelling their chil- 
dren to attend school at an immature or unripe age. There 
are parents who honestl}^ and conscientiously believe that 
they ought to withhold all instruction in the form of educa- 
tion until the child is ten or twelve years of age ; and they 
believe if a child is allowed to* run, jump, climb, swim 
and fish — all this — all this for the physical body, and the 
Incipient mental growth, — when you put a child under 
eight or ten years of age under these conditions, — that at 
the age of twelve it will acquire more than those who 
have been put to school at an earlier age. And there are 
some parents, non-Catholic too, having as great an interest 
in the welfare of their children as the state, who honestly 
believe in this mode of education ; and this law invades the 
nursery of such families, and denies to the parent the power 
to procure the education of his child in the way which he 
deems best for the interests of the child — for the interests 
of the state ! In that way it is inconsistent with reason, is 
an invasion of the rights of the parent, and not productive 
of the best interests of the state. 

I may, in coming to this law and its particular features, 
have occasion to address the Court on certain features ; and ' 
I will do it with but little increase of my argument to the 

jury 

And now, gentlemen of the jury, without any prelimi- 
nary introduction to you, in the brief time I shall address 
you, I want to start at once into a discussion of the facts 
of this case before you. All questions of law in the case, 
however much counsel may disagree about them, will be 



102 THE STATE OF OHIO VS. THE KEV. PATRICK F. QUIGLEY. 

determined and decided for tlie purposes of tliis trial and 
in this court by the Court. It would not be proper for me 
to discuss questions of law before you ; but I desire to refer 
to some propositions of law as I proceed ; and I desire to 
discuss before you, gentlemen of the jury, the facts of this 
case. 

If it be true, as it is claimed by us, that this law is un- 
constitutional ; that it is in violation and invasion of indi- 
vidual rights ; that it invades and denies the privileges of the 
parent, in the mode and manner of the education of his 
own child — if that is so, and if the Court is convinced of 
that, aoid that these parts of the law which do this are so 
inseparably connected with the other portions of the law 
that one would not have been enacted without the other, 
the Court will so declare, and that wall be the end of your 
labor and of mine ; but we cannot anticipate in advance, of 
course, what the Court will say to you. Therefore, waiv- 
ing that, or receding from our claim, we have now, before 
you, to discuss the facts in the assumption that the Court 
may not charge in that regard as we ask him to, and that 
the case may be submitted to you upon the facts in this 
case. If this law then should be held by the Court to be 
constitutional and binding, my first proposition, gentlemen 
of the jury, is this : that this law in the month of April, 
1890, it is alleged and charged, was inoperative and with- 
out effect in the city of Toledo, by express provision of its 
own terms. 

I may not be out of order in reading to you a single 
paragraph : " Provided that this law shall not be operative 
in any school-district where there are not sufficient accom- 
modations to seat all the children compelled to attend school 
Tinder the provisions of this act ; " and the city of Toledo, 
^ve all agree and concur, the entire city, within its corpo- 
rate bounds, comprises and forms one school-district. 

And we are told, if your Honor please, that this applies 
only to the compulsory features of the law ! Strange con- 
struction this, indeed ! And strange that my friends un- 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 103 

dertake to make this construction upon a penal statute 
that is to be strictly construed ! Does it say that this law 
shall not be operative in its compulsory features ? No. But 
the language is that this law shall not be operative — this 
law, this act — this entire act, with all it provisions and all its 
requirements, shall not be operative in any school-district 
where there are not sufficient accommodations to seat the 
cliildren compelled to attend school under the provisions 
of this act. This act, if your Honor please, compels all 
children, regardless of sex or degree or kind, between the 
ages of eight and fourteen, to attend school a certain length 
of time in each year. It requires more than that — it re- 
quires that certain children, between fourteen and sixteen, 
shall also be required to attend school, somewhere or some- 
how — those not able to write at th,at age. It requires 
youth under eight years of age, under some conditions, 
to attend school. Perhaps section four (4) — yes, between 
the ages of seven and fourteen — if they are habitual 
drones. 

Our proposition then is, that, unless it be shown by the 
state that at the time of this alleged violation of la\/ there 
was provided by the state within this school-district suffi- 
cient accommodation to seat all the children, at least 
between eight and fourteen years of age, that, by the terms 
of this law, it was not in force or effect in the city of 
Toledo. 

I say this : that, by the terms of this law, it is only 
operative and in effect under certain conditions; that, in 
the absence of those conditions, it is declared not to be 
operative or in effect ; and I say that it is incumbent upon 
the state to show that it is in effect — that those conxlitions 
are here existing that make the law operative, otherwise 
it is of no effect, because the presumption of innocence in 
criminal matters is a superior and higher presumption 
than any of those known to the law. 

I say this : that it must affirmatively appear to the 
jury under the proofs in the case— and that beyond all 



104 THE STATE OE OHIO I'd. THE llEV. PATRICK F. QUIGLEY. 

reasonable doubt — that tliis law, wliicli lias declared that 
it may not be operative under certain conditions, that these 
conditions did here and then exist before the law is opery^- 
tive, and, if they have any reasonable doubts upon the 
proofs, it is their duty to give the defendant the benefit 
of that doubt, and acquit. 

Gentlemen of the Jury, assuming that to be the law 
to be given you for your guidance and government in this 
case, let us see how it stands. We find from the testimony 
of Mr. Compton — and, if Mr. Compton is in the room, I 
may state the figures, and I will take it as no interruption 
for him or any of you, gentlemen of the jury, to correct 
me. He tells us that in April, 1890, the seatings in the 
school-houses — public schools — in the City of Toledo, for 
all purposes, including the High, Grammar, and all, the 
schools, in the different buildings, or ward schools, was 
11,696. He gave a different figure first, as 12,000 ; but he 
corrected that and stated it to be 11,696 in April, 1890. 
The enumeration of youth in July, 1890— and I take the 
enumeration of 1890 in preference to that of 1889, for the 
reason that that for 1889 was taken in June, but that for 
1890 was taken in July — that for July, 1890, coming nearer 
to the status of April, 1890, and that enumeration ;was 
27,084 ! Here are seatings for 11,696 pupils in all grades, 
in all schools, and yet at the same time there was enum- 
erated and enrolled of school age in this district the 
immense number of 27,084 ! And yet the' statute says 
that, unless they have. provided ample accommodations to 
receive or seat all pupils, this law shall not be in force or 
in effect in this school-district. I am not forgetful of the 
fact that this applies only to the ages between 8 and 14 
years, and that this enumeration includes all from 6 to 21 
years of age. We are not left Avithout data from which to 
make that computation. I want you to eliminate and 
determine for yourselves the number of children, be- 
tween 8 and 14 years of age, the number of children 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 105 

compelled to attend school under the provisions on this 
subject. 

Mr. Compton gives the number of children between the 
ages of 16 and 21 as 5728 ; take that from 27,084, and we 
will get at the number of youth under 16 years of age ; 
subtracting the one from the other, and we have remain- 
ing between the ages of 6 and 16, 21,356. Follow me. 
Keep these figures in mind. Between 6 and 16 we have 
21,356. We have not yet eliminated sufficiently to get at 
the number from 8 to 14; but from another statement 
which I have obtained from Mr. Compton, he gives the 
figures of those from 6 to 8 years of age as being 3500 in 
the enumeration. 

Mr. Barber. — In the schools. 

Mr. Ritchie. — In the enumeration i 

Mr. Barber. — I do not understand it so. 

Mr. Eitchie. — But I do. 

Mr. Compton. — That was an estimate that I made, with- 
out the reports of the number attending school ; I read it 
afterwards to the Court as five thousand something. 

Mr. Ritchie. — Then that makes it still worse for the 
state ; I have the balance remaining 17,856 ; it would 
make simply 1500 more than that ; I am speaking of the 
enrolment. 

Now, then, this would give us then about — yes, and 
more — about 17,856. No, it would be that much less. 
Take 1500 from 17,856, and it would leave some 16,300, would 
it not ? 16,356, or thereabout, between the ages now of 8 
and 16. 

There was another way of arriving at the same result. 
Mr. Compton gave us as the number between 6 and 16, 
21,356, and as the number between 6 and 8, 3500, or 5000, 
wdiich leaves the same result. 

Now we had no figures from any source, to determine 
accurately the number of pupils between 14 and 16 ; w^e 
have now arrived at the number between the ages of 8 and 
16 as being, as corrected, 16,500 pupils. The only way of 



106 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

doing that is to take the average from 8 to 16 — a period of 
8 years. If the ages are uniform ; and take from that J 
from 16,500, and you would then have the exact number 
between 8 and 14 years of age — well, J of that would be 
4100 and something ; taken from the 16,500 would leave 
12,400, as being the number of youth now and at that time 
in the city of Toledo, between the ages of 8 and 14 and com- 
pelled to attend school under the provisions of this act. 
My figures were 13,392 ; but we will call it now 12,000 in 
round numbers, as corrected ; and you have then the entire 
city seating 11,696 ! But wait a mo^nent. Of those there 
were 819 in the high-school building, that were not in 
the primary department, or ward schools, at all. 

Take now from 11,696, 819, and you have 10,877. But, 
to be fair and just, Mr. Compton did say that there was 
attending the high school, in some departments, 250 that 
were under the age of 14 years ; so that we should add 250 
that were accommodated in the high school, that were 
required to attend school somewhere, under this act. 
Then you have 11,127 seats remaining unoccupied ; but I 
beg you to bear this in mind, gentlemen of the jur}^, that 
he says there were now 3500 attending school, between 
the ages of 6 and 8 years. The enumeration was some 
5000 ; there were 3500 attending school in this school 
district, between the ages of 6 and 8 years ; those children, 
under your school laws, had the right to attend school ; 
they occupied then just 3500 of these seats, that he has 
spoken of. 

Now I wish I could revise my figures on the other 
theory ; but if you take the number of seats now occupied 
by youth under 8 years of age from the 11,000 — 7000 — 
you have then, gentlemen, remaining, of seats unoccupied, 
reserved or fit to be appropriated by those between 6 and 
14, 7627 — there being 12,000 between those ages — only 
7600 seats for their accommodation. 

Now, I submit, gentlemen of the jury, that these figures 
do not lie ; that that is the truth and the correct analysis — 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 107 

substantially true and correct, at least all the accommoda- 
tions furnished and provided by the state of Ohio for the 
accommodation of these youth within this district. And 
you have then, I say, you have then, for 12,000 pupils, seats 
only for 7600, or 4400 of these youth, required to attend 
school under the provisions of this act, for which there 
was no provision ; and this law declares that unless pro- 
vision has been made for these children and every one 
of them, this law shall be inoperative or ineffective in this 
district. 

The state here has been derelict in its duty, in not fur- 
nishing accommodations for these pupils, and yet attempt- 
ing to enforce this law against other parties, against whom 
it is by its own terms inoperative. 

I made a computation here, gentlemen, in my way : 
Supposing that the 3500 was the enumeration of youth 
between 6 and 8 years of age ; and I made a computation, 
assuming only that one half of those attended our schools ; 
but now it is shown that actually 3500 of them did attend 
school, occupying so many seats, reducing the number of 
seats provided for those between 8 and 14 down to 7627 ; 
and I submit to the Court that this law means the seats 
furnished by the state authorities for the accommodation 
of pupils ; and I understand that to be the interpretation. 

Court. — For information I ask you, what you do with 
the children who attend private schools ? 

Mr. Ritchie. — I am just coming to that. Your Honor 
means all private and parochial schools ? 

Court.— Yes, sir. 

Mr. Ritchie.— I understood Mr. Barber to say that if 
his interpretation of the law was correct, the state would 
have to furnish school-accommodations for all the children 
required, from their age, to attend school. 

Mr. Barber. — Judge, I claim that that is a strained 
construction. 

Mr. Ritchie. — I say, if your Honor please, that I feel 
that this subject is vital, and also fatal to this prosecution. 



108 THE STATE OE OHIO VS. THE EEV. PATRICK F. QUIGLEY. 

It is this: tliat the state has no right to include nor 
account the accommodations for pupils or youth, that have 
been furnished or provided by private means, or by others. 
Because, if that is so, that would be in effect compelling 
the parents to furnish the means of seating their own 
children, and would punish them as for a violation of law, 
if they did not do so. 

Now, as to the accommodations in these private schools 
— the law and the evidence is entirely silent upon that 
subject. The proof here discloses that, in addition to the 
public schools, we have here in St. Francis de Sales 
parish a private or parochial school, with a seating of 300, 
with an enumeration of 600 in the parish. The proof 
also discloses the fact of the parochial schools of three 
others in the same territory — the German, the French, ancj 
the Polish. The extent of their accommodations, or the 
number of their youth, the proof does not inform us upon ; 
one other school was spoken of by Father McCarty in the 
Fifth ward ; but we have no knowledge of the facts about 
it ; so that even if we are at liberty to supplement proof 
already in our possession, the proof is entirely silent ; so 
that, for aught that appears here, with these added, there 
was not enough to accommodate all between 8 and 14 
years of age in the district ; and therefore the law was not 
then operative. 

I say that, inasmuch as this exception and proviso is 
here, there is no presumption that these seats were there. 
The presumption is that this man. Father Quigley, is not 
guilty, and that, as opposed to that presumption of inno- 
cence, every other presumption must fall. This is all an 
attempt to supplement the accommodations furnished by 
the state by those furnished by private individuals. 

CouET : I would inquire : There is evidence in this case 
tending to show the number of pupils who are actually 
in attendance at this time in all the private schools in 
this city. Now, if attendance at a private school is com- 
pliance with the law, as it seems to be proved, should the 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLBY. 109 

number of cliildren who are actually in attendance upon 
privatj schools be considered as being that of children 
compelled under the law to attend the public school ? 

Mr. Ritchie : I am not aware of any proof to show or 
account for that. 

The Court : Mr. Compton testified on that subject. 

Mr. Ritchie : That had escaped my attention, your 
Honor. 

The Court : If they comply with the law relating to 
private schools, then how are those children to be ac- 
counted ? 

Mr. Ritchie : Now, back and behind all that, I insist 
and maintain that before the state can enforce this law 
against others, it must first itself do its duty required by 
law — that is, that it shall furnish accommodations sufiicient 
in our public schools for the accommodation of all youth 
compelled to attend them, under this act, and that they 
are not permitted to supplement their own seatings with 
those of the private schools, even if they could be deter- 
mined. 

(To the jury :) I have said, gentlemen of the jury, and 
I see that my time is getting away — I have said on that 
first proposition, and I think I have established the fact 
from the evidence, clearly and conclusively, that, if my 
construction of the law is correct, even if you were per- 
mitted to supplement the state's accommodations by 
those of the private schools, still it does not appear 
that there were seating capacities sufficient for the school 
youth of this city, between the ages of eight and fourteen 
years. 

My next proposition to argue before you, gentlemen, is 
this : That, even if this law should be held to be constitu- 
tional, and if the law shall be held by you, as a finding of 
fact, under the instruction of the Court, yet I submit that 
it was not obligatory upon this defendant, as the priest or 
pastor of St. Francis de Sales parish, and he had no du- 
ties to perform under it. 



110 THE STATE OF OHIO VS. THE llEV. PATEICK F. QUIGLEY. 

If your Honor please, tliis law designates and names 
tliree classes of individuals, aside from the Board of Edu- 
cation of our public scliools, as having certain control in 
the conduct and management of schools. Section 11, page 
145, 87 Ohio Session LaAvs : " That it shall be the duty of 
all principals and teachers of all schools, public and pri- 
vate, to report to the clerk of the Board of Education of 
the city," etc. \ 

Now then, under that law I suppose it will not be 
claimed that any one is bound to report, except one who is 
either teacher or principal of these schools, from which re- 
ports are claimed or required. It does not include, as my 
brother maintained this morning, all who exercised either 
domination or control over those schools. It is limited 
to teachers and principals ; and I insist, as a principle 
of law, that Father Quigley was not the principal, nor 
teacher of smj of those schools at that time. I have said 
that it named tliree different classes in authority over the 
schools, besides the Board of Education. Section first 
speaks of certain children who may be exempted or ex- 
cused from such attendance by the superintendent of the 
public, private or parochial schools in cities, or by author- 
ity of the Board of Education in special, village or town- 
ship districts. Here then is evidently a distinct recogni- 
tion of some one in authority having power to excuse chil- 
dren from attendance, even in parochial schools, other 
than principals and teachers. The law requires no report 
from superintendents of parochial schools— only from 
principals or teachers. Father Quigley was at most, in 
his relation to that school, but a superintendent of a 
parochial school. Who else is mentioned there except the 
pastor of the congregation ? The superintendent of paro- 
chial schools shall excuse children when, in his judg- 
ment, their physical or mental condition has been such as 
to prevent their attendance at school, etc. No report is 
required from him, who is over the teachers, over the prin- 
cipal ; he is the superintendent ; and Father Quigley, un- 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. Ill 

der the proof, was discliarging the duties there, not of a 
teacher, not of a principal, but those of a superintendent 
or of a Board of Education, if you please, as those in our 
public schools. Compare his duties with those of Mr. 
Compton : the superintendent of the public schools is over 
the principals, over the, teachers; and it is a fact known to 
every one of you, that in every ward school there is a prin- 
cipal of that building there, and the head teacher is the 
principal of the ward schools ; the head teacher is the prin- 
cipal of the grammar schools ; the head teacher is the prin- 
cipal. But over all is the superintendent ; it is he who 
inflicts severe punishments upon refractory pupils ; such 
children are sent to him ; the incorrigible youth are sent 
to him ; these are the duties of the superintendent, and not 
of a principal of the school. 

This law is new. It is penal. We can simply guess at 
its meaning ; and the Court must make the last guess here, 
and of course that guess will control. But, if your Honor 
please, I had somewhere here — I have it here — you will 
find, if your Honor please, the same term running through 
all the first seven different sections of this act — recognizing 
the duties and functions of an ofiicer placed over the 
parochial schools — different from a teacher, and known as 
a^ superintendent ; but please bear in mind now, that this 
law requires no report from a superintendent, but only 
from principals and teachers. 

The word •' superintendent " is defined : " One who has 
oversight and charge of something, with poAver of direction 
and control." Did Father Quigley have more than the over- 
sight and charge of these schools, with power of direction 
and control ? If not, he was then superintendent, and not 
teacher. You all know that a principal is the chief instructor 
engaged continuously^ in the duty of imparting knowledge 
and instruction in the school or schools under his charge. 
You know now that Father Quigley had no duties to per- 
form in that school other than that of pastor of his con- 
gregation — the duties of visiting, of administration, the duty 



112 THE STATE OF OHIO VS. THE llEV. PATRICK F. QUIGLEY. 

of eucouragemeut towards those under him, and the dutj 
of seeing what progress they were making in their secular 
studies, just as Mr. Compton does in every school of this 
city which is under his charge or control ; and from him 
no report is required. 

The word "principal" is defined "president, governor, 
or chief in authority " — we apply the words as has Webster, 
and — the chief instruc'tor in an academy or seminary of 
learning. We apply the word to the chief instructor, the 
principal teacher, the head instructor, the chief instructor 
of an academy or seminary of learning ; and I submit, if your 
Honor please, that the law speaks, in this sense, of the prin- 
cipal of a school — I submit that the word is used in that 
particular sense — in that precise and technical sense, which 
is understood to be and to mean the principal or chief in- 
structor in a school, like, for instance, the principal of a 
business-college, or the principal of an academy, not one 
who is not himself devoted to the daily avocation of teach- 
ing and imparting instruction. I mean the principal is 
one devoted to the daily avocation of teaching and impart- 
ing instruction and knowledge, whereas the office of 
superintendent consists in exercising only a supervisory 
care of the school or schools ; and therefore I submit that, 
under this law, it Avas not obligatory upon Father Quigley 
to make any report in this case at all. 

If your Honor please, I wish to call your Honor's atten- 
tion to another peculiar feature of this law. It is so signifi- 
cant, that it seems to me that it is w^orthy of and will de- 
mand an examination at your hands, and some instructions 
to the jury upon this branch of the statute : Section 4 : 
Any parent, guardian or other person mentioned in this act 
and designated as having certain duties to perform in carry- 
ing out its provisions, failing to comply with the provisions 
of that and the other sections 1 and 3, shall be deemed 
guilty of a misdemeanor, and shall on conviction be liable 
to a fine of not less than five dollars or not more than 
twenty dollars for the first ofi'ence, and not less than twenty 



THE STATE OF OHIO VS, THE KEV. PATRICK F. QUIGLEY. 113 

for each subsequent offence, or to imprisonment for not 
less than one month nor more than three, etc. Now, it 
occurs to me and my thought is this : That the enforcement 
of a provision of law is an executive or administrative 
function ; it is something different, your Honor, from a 
mere compliance with the law ; it is different from a mere 
obedience to the law; it is the enforcement of the provi- 
sions of the law upon or against others. And there are 
classes of persons named in this act who had certain duty 
clearly to perform : the parent or emploj^er is required, if 
able to do so, to compel his children or api3rentices to 
attend school, to enforce upon others a compliance with 
the provisions of this law, that is, to enforce upon the chil- 
dren which he may control a compliance with these provi- 
sions of the law ; the Board of Education of the city, the 
clerk of the Board of Education and the truant officer of 
the city — one and all ; and the truant officer is appointed 
in express terms to assist in the enforcement of the law — 
" to assist in the enforcement of this act " — in enforcing its 
provisions upon others. Why was this term used, if it 
means merely compliance with or obedience to the law? 
What is the significance of this phrase: ''Any person or 
officer mentioned in this act and designated as having certain 
duties to perform, neglecting to perform any such duties, 
shall be liable " ? If he neglect to perform an}^ duties in- 
cumbent upon him under the law, he would be liable. But 
it is not those general duties ; but it is the duties in the 
enforcement of the provisions of this act, in compelling a 
compliance with them upon the part of others. Father 
Quigley was not principal of this school, and had no such 
duties to perform. To illustrate : All children between 
eight and fourteen years of age are required to attend 
school ; if they do that, they are complying with the provi- 
sions of this act; but, in doing that, are they enforcing 
compliance with its provisions upon and by others? Can 
it be said that children attending school, because they are 
required to, are thereby performing a duty in the enforce- 



114 THE STATE OF OHIO Vd. THE KEV. PATRICK F. QUIGLEY. 

inent of its provisions ? Tliey are simply complying witli 
and obeying its provisions ; and I make a marked distinc- 
tion between compliance with an individual duty, and 
that dut}^ which is designated, as being a duty in the en- 
forcement of the provisions of this act, and this would be 
the more apparent by a comparison between this language 
and the language in the preceding section. The principals 
and the teachers now are required to make these reports, 
not to enforce the provisions of this act, but to facilitate, 
to help, to aid the carrying out of the provisions of this 
act — furnishing helps, aids, to enable others to do their 
duty. And, if I have made myself understood, it seems 
to me that there is a marked difference in this language. 
I wonder that this clause is put in, because, if other inter- 
pretations prevail, that any one who fails to perform any 
duty provided by this act is liable, then this was nugatory 
and unnecessary. It might better have read, " any officer, 
failing to comply with the provisions, etc., shall be liable *- " 
but it says, *'. . . duty to perform in the enforcement 
of its provisions ; " and I apprehend that that applies 
only to parents in enforcing it upon their children, or 
those under their charge, the clerk of the Board of Edu- 
cation, the truant officer, and all these executives, and 
those having duties to perform in seeing to and com- 
pelling others, including employers, in discharging their 
duties, or in enabling their youth or employees to attend 
school. 

(To the jury :) I was going to discuss, gentlemen of the 
jury, one other proposition ; but I feel that I shall be 
encroaching upon my brother's time, and I will there- 
fore purposely not say much upon this branch of the sub- 
ject. 

I beg you to now note and remember that this indict- 
ment is for failing to make this report, which was required 
upon the last week in April, 1890. No other omission of 
duty is charged, no other report is made or mentioned, 
than the failure to make this report upon the last week in 



THE STATE OE OHIO VS. THE KEY. PATRICK F. QUIGLEY. 115 

April, 1890, as required by law. I have tried to sliow tliat 
this law was not in force ; I have tried to show you that, if 
it was, it imposed no duty whatever upon Father Quigley, 
but only upon the teachers and principal of that school ; 
and indeed that was understood by Mr. Disher, the 
truant officer. Mr. Rochford says he himself was the 
principal of those schools. At some time or other, Mr. 
Disher says it was in February — upon the 20th of Feb- 
rug^ry — that he took certain blanks to Mr. Rochford. Mr. 
Rochefort says it came after February, or some time in 
March. Dates are not important ; but I beg you to note 
that no blanks were furnished to or for Dr. Quigley for 
that report at that time : he was required to make no 
report at that time, and he here stands charged with that ! 
It is for failing to make a report, which the state said was 
due from him as teacher or principal of that school, in 
April, 1890. There was another thing promulgated this 
morning : my brother Barber says that the accused here 
is charged with failing to make report of the names, ages, 
and places of residence of the pupils in those schools. 
Nothing more is required. And there is a blank requiring 
from the principal or teacher of that school not only the 
ages and names, but — think of it ! — the date of the births 
by day and year of the pupils there ! Now, with all the 
knowledge that Mr. Compton has of the schools in this 
city, I doubt very much if he could to-day give the date 
and year of the birth of every pupil in the public schools 
of the city of Toledo. 

I question it most exceedingly. It could only be done, 
why — bless you, gentlemen of the jury ! — how many 
children are there attending school, at the age of eighteen, 
who do not know the precise year and date of their birth ? 
It could only be obtained by catechising the pupils, after- 
wards the parents, and then by going to the fajnily record, 
to get at the age by the year and date of birth. It is said 
that there were fifteen of these blanks furnished. I find 
there are twenty-five lines on this 'sheet. To furnish the 



116 THE STATE OF OHIO VS. THE KEV. PATRICK E. QUIGLEY. 

desired data for 300 pupils it would require twelve sheets. 
Tlie names of 300 pupils, the precise 3^ear and date of 
birtli, the residence by street and number of these pupils, 
the number of days present, the number of days absent, 
and the number of days truant — and that is absent without 
excuse or reason : this was all required by the secretary of 
this board in regard to these schools, and now the state's 
counsel says they only required the names, age, and resi- 
dence. 

We are here under an indictment for failing to furnish 
this information, or, the law says, any other information 
called for to aid in carrying out the provisions of this act. 

Now, is it possible, gentlemen, that a man bearing no 
relation to the public schools, not being one of its em- 
ployees in any sense, can be required to perform this 
labor for nothing, and that, too, four times a year? The 
labor of it! But that is not what I am coming at, but 
it was this, gentlemen : that this Avas a requirement 
from the clerk of the board for this information ; and we 
were just as much bound to furnish the one as the other. 
It won't do now to say: "We only required the name, 
age, and residence," when the blanks call for year and date 
of birth, number of days present, number of days absent, 
number days truant, and the residence by street and 
number, and you will remember what Mr. Compton said 
about this blank. His idea was that it was to contain 
information from the last year, while some think it in- 
cludes only the last month, before the law took effect. It 
gives no guide or reason for what length of time this 
report shall be made — a singular omission. You, Mr. 
Kirk (one of the jury), were formerly a teacher: could you 
tell what period of time it was intended that that blank 
should cover? Whether it was intended to go back a 
year, a quarter of a year, or only a month? No one 
knows, and it has not been intimated at all. But these 
blanks were furnished—to Mr. Kochford ; and for what 
purpose ? 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 117 

Mr. Dislier says it was for him to make his report ; 
that he agreed to distribute them to the other schools in 
the building. The idea then of Mr. Disher was undoubt- 
edly a separate report from each school in that building — 
from each teacher, and from each room. That was his 
idea. They were not sure themselves. 

Now, as to April, no legal demand was made by the 
officer. " We are not obliged to furnish these blanks at 
all , " says my friend. " We are obliged only to have them 
on hand." That is, if I engage to furnish instruction to 
your family or your school, I am required only to have 
the instruction on hand. But to furnish is to supply, to 
deliver. If I am required to furnish rations for the militia 
in active service, or in time of war, I comply by having 
the rations on hand ! Their duty was to furnish to these 
teachers and this principal these blanks. Were they fur- 
furnished ? Gentlemen of the jury, they were offered, as 
the proof shows, in regard to April, 1890, to Father Quig- 
ley — at what time ? On the 25th day of April, Mr. Disher 
says ! * 

Now, if your Honor please, and that right there ! This 
report had to be made in the last week of April, if it was 
to be made at all. Is there not a reasonable inference 
that he was to have the whole of that last week ? When 
you consider the labor involved in it, the length of time 
required, and when the clerk is required to furnish these 
blanks, should they not be furnished in sufficient time to 
give the teacher or principal, whoever it was, the entire 
last week of April for this report ? But in this case the 



* The blanks were offered by Mr. Disher in person on the 28th day 
of April. Mr, Compton, the superintendent, sent blanks by mail on the 
2(1 day of May, and accompanied them by a letter dated May 1st ; but 
the envelope enclosing them bears the stamp of the Toledo post-office, 
May 2d, as the day the letter was mailed. See said letter, above, pp. 
9 and 10. 



118 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLET. 

defendant was only allowed four or five days^why not a 
week at least ? 

These blanks were not in possession of Father Quig- 
ley ; they were under lock and key of Mr. Rochlort. 

And another thing, gentlemen, in this connection : I 
don't know what your Honor may say about this — indeed 
I am entirely unable to comprehend it ; it is another ex- 
ception or proviso following the one in regard to the ac- 
commodations furnished for the children : *' Provided that 
no prosecution shall be instituted against any parent, 
guardian, or other person in charge of such child or chil- 
dren." Now there may be some meaning to that — 

Court : I was in hopes that you would overlook 
that part. 

Mr. EiTCHiE : Well, I do not care for any construction 
of that part of it. "Unless they have received due noti- 
fication from the officer empowered under this act, that 
they are acting in violation of law." 

"Or other person" I suppose includes principal or 
teacher of schools. So that there must not only then be a 
failure to furnish these blanks ; but there must be an ex- 
press notification or warning that the party is acting in vi- 
olation of this act. If that applies to teachers and princi- 
pal, in case they fail to make their report, where is the 
proof here of any warning or notification to Dr. Quigley 
that he was acting in violation of the provisions of this act ? 
Mr. Compton never saw him — beg pardon ! he did see 
him occasionally, with this school report in his hand ; but 
he never spoke to him. Mr. Disher saw him in April, at 
the time that he undertook to deliver to him these blank 
reports ; but there Avas no warning given that he was act- 
ing in violation of law. Indeed, he was acting in no viola- 
tion of law at that time, for he had three days after that to 
comply with the law. 

Mr. Barber : He went there twice afterwards. 

Mr. Eitchie": Possibly; but he never saw Dr. Quig- 
ley after that. I ask counsel, where is the proof here 



THE STATE OF OHIO VS. THE REV. PATRICK ¥. t^UIGLEY. 119 

of any notification from any source whatever, after Dr. 
Quigiey is alleged to have been in default of duty, if he 
had any such, that he was acting in violation of law ? And 
that is a thing which is important in this case. 

Now, gentlemen, without apology for the length of time 
I have taken your attention, without excuse for the short- 
ening of this discussion, I am compelled to leave this case 
with you, regretting only that I have not been able to 
make my view of this case more apparent to your minds; 
but, knowing that you will make ample investigation and 
arrive at a conclusion satisfactory to yourselves, to your 
consciences, and to the Court, in your duty as citizens, I 
retire and submit to you this case, ( Recess.) 

Mr. HuED followed for defendant as follows: 

May it please the Court : The principal part of the 
time which has been allotted to me will be occupied in ad- 
dressing your Honor : and my excuse for the length of 
time which I shall consume must be found in the novelty 
and importance of the questions which are involved in the 
construction of this statute, and the application of it in its 
attempted enforcement in this case. 

The constitutionality of this act is assailed on two 
grounds : First, that the constitution does not propose to 
interfere with the parental right, the right of parents to 
educate their children ; and that there is nothing in that 
instrument which indicates that interference with such nat- 
ural right by legislation was ever intended to be author- 
ized ; and second, that the only authority as to the subject 
of schools is conferred by the constitution in the article as 
to education — and that being limited to the establishment 
of common schools, does not authorize interference by the 
Legislature with parochial schools. 

The first proposition has been sufficiently discussed by 
Judge Dunne. What I have to say shall be devoted to the 
discussion of the second proposition : and, at the outset, I 
desire to make a remark upon the suggestion made by 
your Honor the other day, that you did not propose to pass 



I;a0 THE STATE 01^^ OIJIO Vd. THE KEVo PATEICK F. (^UIGLEY. 

upon ciuy question wliicli was decided by Judge Lemmou ou 
tlie hearing of the demurrer. The only question that was 
submitted to Judge Lemmon ou the hearing of that demur- 
rer was whether the indictment was defective for failing to 
aver that the school of defendant was either a public or a 
private school. In considering and passing upon that 
question, Judge Lemmon intimated that he regarded the 
law as constitutional ; but, when I said to him I hoped he 
would not decide it to be constitutional without argument, 
he said he would wait for it. 

On that hearing, the particular question which I pro- 
pose to make now could not have been heard ; viz , 
whether this law extends to parochial schools ? For that 
could only have been discussed when the facts were 
brought to the attention of the Court, as to what a paro- 
chial school was — a fact which could not have been con- 
sidered by the Court on the hearing oi the demurrer. 

What are parochial schools ? The testimony in this 
case has disclosed fully the nature of their organization ; 
they are formed by the parents of the parish, who desire to 
have schools in which their children may be educated ; 
they are maintained by the voluntary contributions of 
those parents, and are managed and governed by the rules 
and authority of the church of which the parish is a part, 
under such constitution and by-laws as are prescribed by 
the bishop of the diocese, and which have been submitted 
in evidence in this case. They are maintained without 
public aid ; they are private institutions, designed by the 
parents themselves for' the purpose of performing the 
natural duty that has been devolved upon them by virtue 
of their having assumed the parental relation. They are 
not in any regard the creatures of public authority, nor in 
any sense subject to public control. They are subject to 
the control of the private individuals whose moneys con- 
tribute the fund out of which their support comes. Does 
this law interfere with the administration and management 
of these parochial schools ? An analysis of its provisions is 



THE STATE OF OHIO VS, THE KEY. PATRICK F. QUIGLEY. 121 

made necessary ; and I desire to call attention specially to 
the first section and to the amendment to it, which is 
found in volume 87, O. S. 316 : 

" All parents, guardians or other persons who have care of 
children, shall instruct them, or cause them to be instructed, 
in reading, spelling, writing, English grammar, geography 
and arithmetic, and every parent, guardian, or other per- 
son having control and charge of any child between the ages 
of eight and fourteen years, shall be required to send any 
such child or children to a public or private school for a 
period of not less than twenty weeks in city districts in each 
school year, commencing September 1, ten weeks of which 
at least shall be consecutive, which shall commence within 
the first four weeks of the first term of the school year, and 
and in special, village or township districts not less than 
sixteen weeks in each school year, eight of which shall be 
consecutive, unless such child or children are excused from 
attendance by the superintendent of the public, private or 
parochial schools in cities, or by authority of the board of 
education in villages and townships, when it shall have been 
shown to the satisfaction of said superintendent or said 
board that the physical or mental condition of such child 
or children has been such as to prevent his, her or their 
attendance at school, or that said child or children are 
taught at home by some qualified person or persons in 
such branches as are usually taught in primary schools." 

This was amended in the statute found in 87, O. S., re- 
ferred to, by inserting the word " special" between " town- 
ship " and " city district," so as to bring in special districts, 
and by the addition : " Provided, that all youth between 
eight and sixteen years of age, not engaged in some regular 
employment, shall attend school for the full term the 
schools of the district in which they reside are continued 
in the school year, unless excused for the reasons named in 
this section, and, if the parents or guardian having legal 
charge of such youth shall fail to send these youth to 
school regularly for said full term, or said youth shall ab- 



122 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

sent themselves from school, without satisfactory excuse, 
said parents and guardians and said youth shall be subject 
to the provisions and penalties of section eight of this act. 
This section is the foundation of the other provisions of 
the law : it provides first that the parent or guardian, etc., 
shall be compelled to educate his child in the rudimentary 
branches ; secondly, that they shall be compelled to send 
their children, between the ages of eight and sixteen, to the 
public or private schools for the period fixed ; and thirdly, 
upon failure or neglect to comply therewith, they shall be 
subject to prosecution and penalty. The penalties provided 
to secure its enforcement are as follows : First, by prohib- 
iting the employment of children under fourteen years of 
age, unless the provisions of section one shall have been 
complied with ; second, by imposing penalties upon the 
parents, etc., for every violation of section one and section 
four of said act, of not less than $5 or not more than 
$20 for the first offence, and not less than $20 for each 
subsequent offence, or to imprisonment for not less 
than one month nor more than three ; third, in the case 
of habitual truants, or juvenile disorderly persons, by sen- 
tencing them to the boys' industrial school at Lancaster, 
or to the girls' industrial home at Delaware, O.; fourth, by 
authorizing the appointment of police officers, to examine 
into cases of truancy, when requested so to do by the super- 
intendent of public schools in cities, or the board of edu- 
cation in other districts, to warn said truants, parents, etc., 
of the final consequences of truancy, if persisted in, also to 
notify such parents, etc., that said child between eight and 
fourteen years of age is not attending school ; to require 
the parents, etc., to cau^e such child to attend some recog- 
nized school within five days after such notice ; to make 
complaints against such parents, etc., in any court of com- 
petent jurisdiction for neglect, failure or refusal of such 
parent, etc., to cause said child or children to so attend 
school ; to make complaints against juvenile disorderly 
persons where parent, etc., has been discharged because 



THE STATE OF OHIO t^5. THE KEY. PATKICK F. QUIGLEY. 123 

of inability to cause child to attend school as required ; 
fifth, by providing that the truant officer shall make daily 
reports to the superintendent of public schools during the 
school term in cities, etc.; that he shall be authorized to 
enter factories, workshops, stores and all other places 
where children may be employed, and perform such other 
services as the superintendent of schools or the board of 
education may deem necessary to the preservation of the 
morals and good conduct of school children, and for the 
enforcement of this act ; sixth, by requiring all principals 
and teachers of all schools, public and private, to report to 
the clerk of the board of education of the city, etc., in 
which schools are situated, the names, ages and residence 
of all pupils in attendance at their schools, together with 
such other facts as said clerk may require, in order to fa- 
cilitate the carrying out of the provisions of this act, and 
the said clerk shall furnish blanks for said purpose, and 
said reports shall be made in the last week of September, 
December, February, and April in each year. 

From this statement it will appear that all children be- 
tween the school ages named are subject to the jurisdiction 
of the public board of education and the superintendent of 
public schools in the following particulars : First, the tru- 
ant officer is chosen by the board of education and invested 
with the authority which gives him a visitorial power over 
the parochial schools, without consideration of or consul- 
tation with those interested therein ; second, in the case of 
villages the public authorities alone can excuse children 
from attendance upon the ground of physical or mental ina- 
bility ; therefore a child in a village district in a parochial 
school, wishing to be excused for some of the reasons 
named, must submit his request for excuse to the board of 
education ; third, when a child under the age of fourteen 
years is employed by any one, the employer must require 
-proof to be given that the child has completed the usual 
course of primary and grammar grades in the public or 
private schools, and must keep record of such proof, which 



124 THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 

the truant officer is permitted to examine and review in all 
cases ; this involves the possibility of passing judgment by 
public officers upon the sufficiency of the course of private 
and parochial schools ; fourth, when a child between the 
ages of fourteen and sixteen is not able to read and write 
the English language he is obliged to attend scliool at 
least one-half of each day, or to attend some evening school 
organized and maintained by the board of education, or to 
take regular private instruction from some person qualified, 
in the opinion of the superintendent of schools in cities and 
of the clerk of the board of education in other districts, to 
teach such branches, until he or she shall obtain a certifi- 
cate from the superintendent, etc., certifying that said 
minor can read at sight and write legibly simple sentences 
in the English language ; fifth, parents who violate section 
four of the act cannot be relieved from its penalties on ac- 
count of the physical or mental disabilities of their chil- 
dren unless they are excused from attendance by the sup- 
erintendent of public schools in cities, thus making the 
continuance of a child in a parochial school dependent, 
not upon the rules, etc., of such school or its superintend- 
ent, but upon those of the officers of the public schools ; 
sixth, the truant officer shall perform such other services 
as the superintendent of schools or the board of education 
shall deem necessary to the preservation of the morals and 
good conduct of school children and for the enforcement 
of this act. The management therefore of all these mat- 
ters is thus conferred upon the board of education and the 
superintendent of schools ; seventh, the truant officer re- 
ports to the superintendent of the public schools, or the 
board of education — thus entirely ignoring any parochial 
superintendent ; eighth, he shall also keep a record of his 
transactions, subject to inspection of the officers and mem- 
bers of the board of eduction ; and not to any one else ; 
ninth, while it shall be the duty of all truant officers to 
examine into all cases of truancy, when any such comes be- 
fore their notice, or when requested to do so by the superin- 



THE STATE OF OHIO VS. THE REV. PATKICK F. QUIGLEY. 1'25 

tendent of public schools or by the board of education, such 
truaut officer otherwise acts only upon direction of the sup- 
erintendent or board of education ; and all acts under this 
law are subject to the judgment of the superintendent of 
public schools or the board of education ; tenth, it requires 
all principals and teachers of all schools — parochial, public 
or private, to report to the clerk of the board of education 
of the city, or other districts, in which schools are situated, 
the names, ages, and residence of all jDupils in attendance 
at their schools, together with such other facts as said 
clerk may require. 

It will thus be seen that the law attempts to confer ¥ 
upon the superintendent of public schools and the boards 
of education powers over the parochial schools : 

First, to determine what are sufficient grounds of ex- 
cuse for non-attendance upon school ; second, to exercise 
a visitorial jurisdiction over their management ; third, to 
review the sufficiency of their grammar and primary 
courses of instruction ; fourth, to make the continuance of 
absence from school depend upon the approval of other 
than their own teachers ; fifth, to maintain discipline ; 
sixth, to inquire into all their cases of truancy ; seventh, 
to compel their principals and teachers to report to the 
clerk of the Board of Education of the city, or other dis- 
tricts, in which their schools are situated, the names, ages, 
and residences of the pupils in attendance, together with 
such other facts as said clerk may require. It will then 
be seen that the powers intended to be conferred by this 
act under the attendance of pupils upon private schools, 
the maintenance of discipline in them, and the duties of 
their teachers — powers, if exercised as they may be, will 
end in the destruction of ^^I'i^^'a^te and parochial schools, 
and all education then becomes practically subject to the _^ 
authority of the state ! This statute proposes two impor- 
tant innovations in the law, as it has hitherto existed in 
the State of Ohio. It compels the parent to send his child 
for a certain time to school, to be taught a certain course 



126 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 

of study, under penalty of fine and imprisonment ; second, 
it establishes regulations wliicli interfere with the man- 
agement of private and parochial schools and thus embar- 
rass their eiticiehcy. 

I shall add nothing to what Judge Dunne has said 
about the unconstitutionality of the law, in view of the 
first condition, and shall confine myself, as suggested 
awhile ago, to arguing that it is unconstitutional because 
it does thus interfere with the management of private and 
parochial schools, impairing their efficiency and imperilling 
their very existence. 

The only provisions of the constitution from which it 
can be claimed that the general assembly has derived the 
power to pass this law are the following : Article II., sec- 
tion 1, which provides that the legislative power of this 
state shall be vested in a general assembly, which shall 
consist of a Senate and House of Eepresentatives ; section 7, 
Article I., from the Bill of Rights : " All men have a natural 
and indefeasible right to worship Almighty God according 
to the dictates of their own conscience. No person shall 
be compelled to attend, erect, or support any place of wor- 
ship, or maintain any form of worship against his consent ; 
and no preference shall be given by law to any religious 
society; nor shall any interference with the rights of con- 
science be permitted. No religious test shall be required 
as a qualification for office, nor shall any peison be incom- 
petent to be a witness on account of his religious belief; 
but nothing herein shall be construed to dispense with 
oaths and affirmations. Religion, morality, and knowl- 
edge, however, being essential to good government, it shall 
be the duty of the general assembly to pass suitable laws 
to protect every religious denomination in the peaceable 
enjoyment of its own mode of public worship, and to en- 
courage schools and the means of instruction." 

And Article YI. of the constitution, which treats of the 
subject of education : Section 1, " The principal of all 
funds arising from the sale or other disposition of lands 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 127 

or other property granted or intrusted to tliis State for ed- 
ucational and religious purposes, shall forever be preserved 
inviolate. Section 2, The general assembly shall make 
such provisions, by taxation or otherwise, ( 1 ) as, with the 
income arising from the school trust fund, will secure a 
thorough and efficient sysiem of common schools through- 
out the state ; ( 2 ) but no religious or other sect or sects 
shall ever have any exclusive right to, or control of, any 
part of the school funds of this state. " 

I now call your Honor's attention to the rule, with 
which you are undoubtedly familiar, but which it is always 
necessary to keep in mind, and which governs in constru- 
ing the constitution of a state. It is well expressed in the 
People ex rel. v. Flagg et al, 46 N. Y. Reports, page 401 
— reading from page 404 : " All legislative power is con- 
ferred upon the Senate and Assembly ; and if an act is 
within the legitimate exercise of that power, it is valid, 
unless some restriction or limitation can be found in the 
constitution itself. The distinction between the United 
States constitution and our state constitution is, that the 
former confers upon Congress certain specified powers 
only, while the latter confers upon the legislature all leg- 
islative power. In the one case the powers specifically 
granted can only be exercised. In the other all legisla- 
tive powers not prohibited may be exercised. " 

In the 11 0. xSVp. 542, the rule was laid down by Judge 
Gholson. He says: "It will be observed that the provis- 
ion is not that the legislative power, as conferred in the 
constitution, shall be vested in the general assembly, but 
that the legislative power of this state shall be vested. 
That includes all legislative power which the object and 
purposes of the state government may require, and w^ 
must look to other provisions of the constitution to see 
how far and to what extent legislative discretion is quali- 
fied or restricted. 

^' Hence the difference between the constitution of the 
United States and a state constitution such as ours. In 



128 THE STATE OF OHIO VS. THE EEV. PATEICK. F. QUIGLEY. 

tlie former we look to see if a power is expressly giyeu ; in 
the latter to see if it is denied or limited. " 

One fact which is very persuasive in determining this 
question is that in the whole history of the state for 
nearly a century no such law as this was ever passed 
before. 

CouKT : That has been stated heretofore. 

Mr. HuKD : There was a compulsory education law 
published in the 74th volume of Annual Session Laws of 
the year 1877. That was the first compulsory education law 
ever passed in this state ; but it was a very different law 
from the present one ; still it was a compulsory education 
law ; and it was the first one. 

In People v. Purdy, 2 Hill, 39 and 40, the court in dis- 
cussing the effect of no legislation on a particular sub- 
ject, in determining whether such legislation is constitu- 
tional, said : " These legislative precedents are entitled to 
the more consideration from the fact that they are dis- 
claimers of power such as public bodies do not usually 
make where there is any fair and reasonable ground for 
maintaining their authority. " 

In the State v. Frame, 39 0. S. 420, Okey, judge, said : 
"For more than 30 years after the adoption of the consti- 
tution, no statute in principle like the act of 1883 was 
passed. This, of course, is not conclusive against the ex- 
istence of the ]Dower so to legislate ; but it must be remem- 
bered that during all that time the subject was constantly 
agitated, and the absence of legislation of this character 
affords evidence that the general opinion was against the 
authority to pass such an act. " When it is considered 
that the subject of education has been discussed and legis- 
lated upon by every general assembly from the foundation 
of the state, and that it has been constantly in the public 
mind ever since, and that no compulsory education law 
was ever passed until 1877, it would seem to justify the 
conclusion that such absence of legislation was a disclaim- 
er by the legislature of the poAver to enact it, and that the 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 129 

general opiuiou was against its existence. I will next in- 
quire, what is the nature of the legislative power which is 
conferred by the first section of Article II. of the constitu- 
tion ? Generally it is all the authority which is legislative 
in its nature and was understood to be and recognized as 
such at the time of the framing of the constitution. 
In Taylor v. Porter, 4 Hill, 144, the Court says : 
" Under our form of government the legislature is not 
supreme. It is only one of the organs of that absolute 
sovereignty^, w^hich resides in the wdiole body of the people. 
Like other departments of the government, it can only ex- 
ercise such powers as have been delegated to it; and when 
it steps beyond that boundary its acts, like those of the 
most humble magistrate in the state wdio transcends his 
jurisdiction, are utterly void. Where, then, shall we find a 
delegation of power to the legislature to take the property 
of A and give it to B, either with or without compensation? 
Only one clause of the constitution can be cited in support 
of the power, and that is the first section of the first article, 
where the people have declared that " the legislative power 
of this state shall be vested in a senate and assembly." It 
is readily admitted that the two houses, subject only to the 
qualified negative of the governor, possess all " the legis- 
lative power of this state ;" but the question immediately 
presents itself, what is that " legislative power," and how 
far does it extend ? Does it reach the life, liberty, and 
property of a citizen who is not charged with a transgres- 
sion of the laws, and when the sacrifice is not demanded 
by a just regard for the public welfare ? In Wilkinson v. 
Leland (2 Peters, 657) Mr. Justice Story says : " The 
fundamental maxims of free government seem to require 
that the rights of personal liberty and private property 
should be held sacred. At least, no court of justice in this 
country would be warranted in assuming that the power 
to violate and disregard them — a power so repugnant to the 
common principles of justice and civil liberty — lurked 
under any general grant of legislative authorit^^, or ought 



130 THE STATE OF OHIO V6. THE REV. PATRICK F. QUIGLEY. 

to be implied from any general expressions of the will of 
the people. The people ought not to be presumed to part 
with rights so vital to their security and wellbeing without 
very strong and direct expression of such intention." He 
added : " We know of no case in which a legislative act to 
transfer property from A to B, without his consent, has 
ever been held a constitutional exercise of legislative power 
in any state in the Union. On the contrary, it has con- 
stantly been resisted as inconsistent with just principles by 
every judicial tribunal in which it has been attempted to 
be enforced." (See also 2 Kent's Com., 13, 340, and cases 
there cited.) " The security of life, liberty, and property 
lies at the foundation of the social compact ; and to say 
that this grant of " legislative power " includes the right to 
attack private property is equivalent to saying that the 
people have delegated to their servants the power of de- 
feating one of the great ends for which the government was 
established. If there was not one word of qualification in 
the whole instrument, I should feel grea-t difficulty in 
bringing myself to the conclusion that the clause under 
consideration had clothed the legislature with despotic 
power ; and such is the extent of their authority, if they 
can take the property of A, either with or without com- 
pensation, and give it to B. " The legislative power of this 
state " does not reach to such an unwarrantable extent. 
Neither life, liberty, nor property, except when forfeited 
by crime, or when the latter is taken for public use, falls 
within the scope of the power." 

In Lafayette, Muncie & Bloomington R. R. Co. and an- 
other V. Geiger, 34 Indiana, pp. 185, 202, and 203, the Court 
goes on to state several rules of constitutional construction 
as laid down by the supreme court of the United States : 
" 1st. The framers of the constitution must be understood 
to have employed words in their natural sense, and to have 
intended what they said ; and, in construing the extent of 
the powers which it creates there is no other rule than to 
consider the language of the instrument which confers 



TliJ] STATE or OHIO VS. THE EEV. PATRICK F. QUIGLEY. 131 

fcliem in connection with the purpose for which they were 
conferred. The courts should look to the nature and ob- 
jects of the particular powers, duties, and rights in ques- 
tion, with all the lights and aids of contemporary history, 
and to give to the words of each provision just such oper- 
ation and force -consistent with their legitimate meaning as 
will fairly secure and attain the end proposed." 

" 2d. The Court should look to the history of the times 
and examine the state of things existing when the constitu- 
tion was framed and adopted, to ascertain the old law, the 
mischief and the remedy. Thus the language used in the 
Federal constitution as to the power of pardoning must be 
construed by the exercise of that power in England prior 
to the Revolution, and in the states prior to the adoption of 
the constitution." 

" 3d. A contemporary exposition of the constitution, 
practised and acquiesced in for a period of years, fixes the 
construction, and the Court will mot shake or control it." 

And the same doctrine is announced in Leavenworth 
County V. Miller, 7 Kansas, p. 479, and 5, page 617. These 
authorities and many more which might be cited approve 
the following propositions : 

1. The legislative power is not unlimited ; nor are its 
limitations to be found alone in the express prcfvision of 
the constitution. They may arise either from necessary 
implication or from recitals in the bill of rights, or from 
the indefeasible nature of the rights which tlie legislation 
is designed to affect. 

2. Where there is a natural right which the legislative 
power in Great Britain at the time of the settleme*ht of the 
colonies had not undertaken to control, which was not 
regarded as being within the scope of such power at the 
time of the formation of our national and state constitu- 
tions, and which for nearly a century remained unaffected 
by any act of the general assembly, it is a warranted con- 
clusion that such right cannot be controlled or interfered 
with by legislative enactment. 



132 TxIE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 

WitL these principles of constitutional construction in 
view, I maintain that the subject of education was never 
regarded as within the control of the legislative power, 
except so far as the provisions for public education were 
concerned ; and first at common law. In first Blackstone, 
page 450, it is said : " The last duty of parents to their 
children is that of giving them an education suitable to 
their station in life ; a duty appointed by reason, and of 
far the greatest importance of any. For, as Puffendorf 
very well observes, it is not easy to imagine or allow that 
a parent has conferred any considerable benefit upon his 
child by bringing him into the world, if he afterwards neg- 
lects his culture and education, and suffers him to grow 
up like a mere beast, to lead a life useless to others anc. 
S'hameful to himself. Yet the municipal laws of most 
countries seem to be defective in this point, by not con- 
straining the parent to bestow a proper education upon his 
children. Perhaps they thought it punishment enough to 
leave the parent who neglects the instruction of his family 
to labor un(?ler those griefs and inconveniences which his 
family, so uninstructed, will be sure to bring upon him. 
Our laws, thongh their defects in this particular cannot be 
denied, have in one instance made a wise provision for 
breeding up the rising generation, since the poor and 
laborious part of the community, when past the age of 
nurture, are taken out of the hands of their parents by the 
statutes for apprenticing poor children, and are placed out 
by the public in such a manner as may render their abili- 
ties in their several stations of the greatest advantage to 
the commonwealth. The rich, indeed, are left at their own 
option, whether they will breed up their children to be 
ornaments or disgraces to their family. Yet in one case, 
that of religion, they are under peculiar restrictions." 

So we see, at the time of Blackstone, there was no such 
thing as compulsory education known ; and moreover there 
was no such thing as public education, except for those 
who had no one to care for them • it was entirely in the 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 133 

hands of private instructors or parents ; and from that 
time to this day, as far as I am advised, there is no system 
in England providing for public education ; and the moneys 
paid for education are divided among the teachers and 
principals, in proportion to their efficiency, or according 
to the number of scholars. 

In the second of Kent's Commentaries, page 196, it is 
said : 

" The education of children in a manner suitable to 
their station and calling is another branch of parental 
duty, of imperfect obligation generally in the eye of the 
municipal law, but of very great importance to the welfare 
of the state. Without some preparation made in youth 
for the sequel of life, children of all conditions would 
probably become idle and vicious when they grow up, 
either from the want of good instruction and habits, and 
the means of subsistence, or from want of rational and use- 
ful occupation. A parent who sends his son into the world 
uneducated, and without skill in any art or science, does a 
great injury to mankind as well as to his own family, for 
he defrauds the community of a useful citizen, and be- 
queaths to it a nuisance. This parental duty is strongly 
and persuasively inculcated by the writers on natural law. 
Solon was so deeply impressed with the force of the obli- 
gation that he even excused the children of Athens from 
maintaining their parents if they had neglected to train 
them up to some art or profession. Several of the states 
of antiquity were too solicitous to form their youth for the 
various duties of civil life, even to intrust their education 
solely to the parent ; but this, as in Crete and Sparta, was 
upon the principle, totally inadmissible in the modern civ- 
ilized world, of the absorption of the individual in the body 
politic, and of his entire subjection to the despotism of the 
state." 

In Brown on the Domestic Relations, page 69, under 
the subject " Duties of Parents," it is said concerning the 
duty to educate their children : *' This is generally a moral 



134 THE STATE OF OHIO VS. THE liEV. PATRICK F. QUIGLEY. 

rather than a legal duty." "In New York there is a sys- 
tem of public education; but it is practically a dead 
letter." 

There is a case decided by the Supreme Court of Illi- 
ncjis, the People v. Turner (10 American Lata Begister, 
page 336), to which I call attention. This was a writ of 
habeas corpus, directed to the superintendent of the Eef orm 
School of the city of Chicago. 

A boy had been taken up as an idler, vagrant, or truant, 
and sent to the Chicago Reform School, where he would 
have been obliged to remain for years ; the opinion of the 
Court was delivered b}^ Judge Thornton, who said : 

" The warrant of commitment does not indicate that 
the arrest was made for a criminal offence. Hence we con- 
clude that it was issued under the general grant of power 
to arrest and confine for misfortune. The contingencies 
enumerated upon the happening of either of which the 
poAver may be exercised, are vagrancy, destitution of 
proper parental care, mendicancy, ignorance, idleness, or 
vice. Upon proof of any one the child is deprived of home 
and parents and friends, and confined for more than half 
of an ordinary life. It is claimed that the law is admin- 
istered for the moral welfare and intellectual improvement 
of the minor, and the good of society. From the record 
before us we know nothing of the management. We are 
only informed that a father w^as deprived of the custody of 
the child, and that he is restrained of his liberty. There- 
fore we can only look at the language of the law and the 
power granted." 

" What is proper parental care ? The best and kindest 
parents would differ in the attempt to solve the question. 
Scarcely any two agree ; and when we consider the watch- 
ful supervision which is so unremitting over the domestic 
affairs of others, the conclusion is forced upon us that 
there is not a child in the land who could not be proved, 
by two or more witnesses, to be in this sad condition. 
Ignorance, idleness, vice, are relative terms. Ignorance is 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 135 

always preferable to error, but at most is only venial. It 
may be general, or it may be limited. Though it is some- 
times said that ' idleness is the parent of vice,' yet the 
former may exist without the latter. It is strictly an 
abstinence from labor or employment. If a child perform 
all its duties to parents and society, the state has no right 
to compel it to labor. Yice is a very comprehensive term ; 
acts wholly innocent in the estimation of many good men 
would, according to the code of ethics of others, show fear- 
ful depravity. What is the standard to be ? What extent 
of enlightenment, what amount of industry, what degree 
of virtue will save from the threatened imprisonment ? In 
our solicitude to form youth for the duties of civil life, we 
should not forget the rights which inhere both in parents 
and children. The principle of the absorption of the child 
in, and its complete subjection to, the despotism of the 
state, is wholly inadmissible in the modern civilized 
world." 

" The parent has the right to the care, custody, and 
assistance of his child. The duty to maintain and protect 
it is a princijjle of natural lav/. He may even justify an 
assault and battery in the defence of his children, and up- 
hold them in their lawsuits. Thus the law recognizes the 
power of parental affections, and excuses acts which, in the 
absence of such a relation, would be punished. Another 
branch of parental duty, strongly inculcated by writers on 
natural law. is the education of children. To aid in the 
performance of these duties and enforce obedience, parents 
have authority over them. The municipal law should not 
disturb this relation, except for the strongest reasons. The 
ease with which it may be disrupted under the laws in 
question, the slightest evidence required and the informal 
mode of procedure, make them conflict with the natural 
right of the parent. Before any abridgment of the right, 
gross misconduct, or almost total unfitness, on the part of 
the parent, should be clearly proved. This power is an 
emanation from God, and every attempt to infringe upon 



136 THE STATE' OF OHIO VS. THE REY. PATRICK ¥. QUIGLEY. 

it, except from dire necessity, should be resisted in all well- 
governed states. In tliis country the hopes of the child in 
respect to its education and future advancement are mainly 
dependent upon the father ; for this he struggles and toils 
through life ; the desire of its accomplishment o]3erating 
as one of the most powerful incentives to industry and 
thrift. The violent abruption of this relation would not 
only tend to wither these motives to action, but necessarily 
in time alienate the father's natural affections." 

"■ But even the power of the parent must be exercised 
with moderation. He may use correction and restraint, 
but in a reasonable manner. He has the right to enforce 
only such discipline as may be necessary to the discharge 
of his sacred trust, only moderate correction and temporary 
confinement. We are not governed by the twelve tables 
which formed the Roman law. The fourth table gave to 
fathers the power of life and death and of sale over their 
children." 

'' In this age and country such provisions would be 
atrocious. If a father confined or imprisoned his child for 
one year the majesty of the law would frown upon the un- 
natural act, and every tender mother and kind father would 
rise up in arms against such monstrous inhumanity." 

" Can the state as parens patrice exceed the power of the 
natural parent, except in punishing crime ? These laVs 
provide for the ' safe keejDing ' of the child ; they direct his 
* commitment,' and only a ' ticket of leave ' or the uncon- 
trolled discretion of a board of guardians will permit the 
imprisoned boy to breathe the pure air of heaven outside 
his prison walls, and to feel the instincts of manhood, by 
contact with the busy world. The mittimus terms him 'a 
proper subject for commitment,' directs the superintendent 
to ' take his body,' and the sheriff indorses upon it, ' exe- 
cuted by delivering the body of the within -named prisoner.' 
The confinement may be from one to fifteen years, accord- 
ing to the age of the child. Executive clemency cannot 
open prison doors, for no offence has been committed. 



THE STATE OF OHIO #5. THE EEV. PATRICK F. QUIGLEY. 137 

The writ of habeas corpus, a writ for the security cf liberty, 
can afford no relief, for the sovereign power of the state, as 
parens patrice, has determined imprisonment beyond recall. 
Such a restraint upon natural liberty is tyranny and op- 
pression." 

" If, without crime, without the conviction of any offence, 
the children of the state are to be thus confined, for the 
good of society, then society had better be reduced to its 
original elements and free government acknowledged a 
failure. In cases of writs of habeas corpus to bring up 
infants, there are other rights besides the rights of the 
father. If improperly or illegally restrained, it is our duty, 
ex dehito justitice, to liberate. The welfare and rights of the 
child are also to be considered. The disability of minors 
does not make slaves or criminals of them. They are en- 
titled to legal rights, and are under legal liabilities. An 
implied contract for necessaries is binding on them. The 
only act which they are under a legal incapacity to perform 
is the appointment of an attorney. All their other acts are 
merely voidable or confirmable. They are liable for torts 
and punishable for crime. Lord Kenyon said: ' If an in- 
fant commit an assault, or utter slander, God forbid that 
he should not be answerable for it in a court of justice.' 
Every child over ten years of age may be found guilty of 
crime. For robbery, burglary, arson, any minor may be 
sent to the penitentiary. Minors are bound to pay taxes 
for the support of the government, and constitute a part of 
the militia, and are compelled to endure the hardships and 
privations of a soldier's life in defence of the constitution 
and the laws, and yet it is assumed that liberty to them is 
a mere chimera. It is something of which they may have 
dreamed, but have never enjoyed the fruition. Can we 
hold children responsible for crime, liable for their torts, 
impose onerous burdens upon them, and yet deprive them 
of the enjoyment of liberty without charge or conviction of 
crime? The bill of rights declares that 'all men are by 
nature free and independent, and have certain inherent and 



138 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

inalienable rights, among wliicli are life, liberty, and the 
pursuit of happiness.' " 

"This language is not restrictive, it is broad and com- 
prehensive, and declares a grand truth that ' all men ' — all 
people everywhere, have the inherent and inalienable right 
to liberty. Shall we say to the children of the state, you 
shall not enjoy this right, a right independent of all human 
laws and regulations ? It is declared in the constitution, 
is higher than constitution and law, and should be held 
forever sacred. 

" Even criminals cannot be convicted and imprisoned 
without due process of law — without a regular trial ac- 
cording to the course of the common law. Why should 
minors be imprisoned for misfortune ? Destitution of 
proper parental care, ignorance, idleness, and vice are mis- 
fortunes — not crime. In all criminal prosecutions against 
minors for grave and heinous offences, they have the right 
to demand the nature and cause of the accusation, ^nd a 
sjoeedy public trial by an impartial jury. All this must 
precede the final commitment to prison. Why should 
children only guilty of misfortune be deprived of liberty 
without ^ due j)rocess of law ' ? It cannot be said that in 
this case there is no imprisonment. This boy is deprived 
of a father's care, bereft of home influences, has no freedom 
of action, is committed for an uncertain time, is branded as 
a prisoner, made subject to the will of others, and thus 
feels that he is a slave. 

"Nothing could more contribute to paralyze the youth- 
ful energies, crush all noble aspirations, and unfit him for 
the duties of manhood. Other means of a milder charac- 
ter, other influences of a more kindly nature, other laws 
less in restraint of liberty, would better accomplish the 
reformation of the depraved, and infringe less upon inalien- 
able rights. 

" It is a grave responsibility to pronounce upon the acts 
of the legislative department. It is, however, the solemn 
duty of the court to adjudge the law, and guard, when as- 



THE STATE OF OHIO VS. THE EEV. PATJIICK F. QUIGLET. 139 

sailed, the liberty of the citizen. The constitution is the 
highest law ; it commands and protects all. Its declaration 
of rights is an express limitation of legislative power, and 
as the laws under which the detention is had are in con- 
flict with its provisions, we must so declare." 

To this case as reported in the Begister an elaborate 
note is attached, written by Judge Rediield, one of the most 
eminent of American jurists and text- writers, heartily com- 
mending the view of the Court. 

From these authorities and considerations it appears 
that at common law there was no such thing as compulsory 
education. That system of jurisprudence did not interfere 
with parents in the performance of their duty of educating 
their children, much less did it permit interference with 
schools established by parents for that purpose. It seems 
clear that it was never considered at common law that 
education was the work of the public authorities, or that 
control of it came within the scope of ordinary legislative 
power. 

It follows that when the constitution of 1801 was 
adopted by the people of this state it could not have been 
intended in the general grant of legislative power to give 
authority to the general assembly to interfere with and 
control private education, and this for the reason, in addi- 
tion to those alrealy suggested, that education was not 
regarded before that time as a subject of municipal regu- 
lation. 

Such, indeed, seems to have been the opinion of the 
general assembly after the adoption of the constitution of 
1801. 

The first law on the subject of education that I find is 
published in 2 Chase, 833 and 898. That provides that the 
money realized from the sale of section 16 in the different 
townships which had been granted for purposes of educa- 
tion to the state, should be divided amongst the scholars, 
or the teachers of the scholars, in each school district ac- 
cording to the enumeration. This money, this fund, by the 



140 THE STATE OF OHIO VS. THE REV. PATRICK E. QUIGLEY. 

first law of Ohio on the subject, was divided pro rata 
among the scholars of the state. 

The constitution of 1801 contained only two provisions 
on the subject of schools. The last paragraph of section 
3, article 8, provides : " But religion, morality, and knowl- 
edge being essentially necessary to good government and 
tlie^ happiness of mankind, schools and the means of in- 
struction shall forever be encouraged by legislative pro- 
vision, not inconsistent with the rights of conscience." 

Section 25, article 8, provides : " That no law shall be 
passed to prevent the poor in the several counties and 
townships within the state from an equal participation in 
the schools, academies, colleges, and universities within 
this state which are endowed in whole or in part from the 
revenues arising from donations made by the United States 
for the support of schools and colleges, and the doors of 
said schools, academies, and universities shall be open for 
the reception of scholars, students, and teachers of every 
grade, without any distinction or preference whatever, 
contrary to the intent for which said donations were made." 

Under these provisions the common-school system of 
Ohio was established. The first act on the subject was 
passed Feb. 5, 1825. The preamble to it was : " Whereas, 
it is provided by the constitution of this state that schools 
and the means of instruction shall forever be encouraged 
by legislative provision." 

In this act, and many subsequent ones amendatory 
thereof, the preamble sets out the particular section rela- 
tive to schools in the constitution, from which the power 
to pass the acts was derived. It was not supposed that it 
came from the general grant of legislative power, but from 
special grant of authority to encourage schools by legisla- 
tive provision. 

The original act establishing common schools and those 
amendatory and supplemental to it did not contain any 
compulsory provision of any sort, and did not assume to 
interfere in any particular with private schools. The whole 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 141 

and palpable object of the system was to furnisli education 
to those who did not desire to obtain it elsewhere. It was 
a public system, sustained by public taxes, and in no way 
trenching upon the private schools, nor upon the right of 
those who established them to control them. 

The language of the constitution of 1801, the legislation 
under it, and the universal practice in this state for half a 
century show that the principles of the Ohio law on the 
subject of education did not vary from those of the com- 
mon law already pointed out. In other words, at the time 
of the adoption of the constitution of 1851 it was universally 
recognized in Ohio as the correct doctrine on this subject, 
that education was the duty of the parent, that common 
schools should be established for those who desired to 
attend them, but that this should work no interference with 
the private schools nor give to the public any control over 
them. Indeed, the earlier Ohio legislation was, as already 
shown, directed to the encouragement of private schools 
by dividing the public funds among them. 

It was, therefore, at a time of the universal acceptance 
of these principles by the people of Toledo that the con- 
stitution of 1851 was ordained. If other views of education 
were to be adopted, and it was intended to confer upon the 
state the whole power over the subject, would not some 
clear, specific grant of power to that effect be required to 
show it ? Can such an entire change from the principles 
of the old constitution be inferred from the mere general 
grant of legislative power ? For a half a century a similar 
grant had not been supposed to confer such an authority, 
and it would seem to be the reasonable view to say that 
the same meaning which the words of the grant carried in 
the old they should carry in the new. In other phrase, the 
legislative power before 1851 did not include authority 
over the subject of education ; it only enabled the general 
assembly to legislate as to that education which the con- 
stitution provided for, viz., public or common school edu- 
cation. It did not include control of private education, and 



142 THE STATE OF OHIO VS. THE llEV. PATEICK F. QUIGLEY. 

never was understood to authorize interference with or 
regulation of private schools. 

When, therefore, the new constitution made the general 
grant of legislative power, it must be presumed that it was 
intended tliereby to grant authority to legislate as to edu- 
cation in the manner and to the extent that such power had 
been theretofore exercised, unless the special grants con- 
ferred a new or different power. 

But there are no such specific grants. Indeed, the 
article of the constitution granting power over the subject 
limits it to common schools or public education. The lan~ 
guage is clear and explicit. Section 2, article 6, declares : 
*' The general assembly shall make such provision by tax- 
ation or otherwise, as, with the income arising from the 
school trust fund, will secure a thorough and efficient 
system of common schools throughout the state." 

Nothing but a common-school system was contemplated 
by the framers of the constitution in the article which 
treats of the subject of education. This I maintain can give 
no power to interfere with private education, nor with the 
parents who send their children to private schools, nor with 
the scholars who attend them. It authorizes only the es- 
tablishment of a system of public education for the use of 
those who wish to avail themselves of it, and of course such 
legislation as is necessary to produce that result. This 
may authorize the passage of a law to compel the attend- 
ance of scholars avIio have chosen to accept the public edu- 
cation, but it is far from conferring power upon the general 
assembly to pass a law compelling attendance upon the 
public schools, and wdiich shall assume control of private 
education. I Avill not dispute that legislation compelling 
attendance of their scholars upon the public schools might 
be constitutional wdiere its sole purpose and effect is to se- 
cure an efficient common-school system. But I deny that 
the legislature possesses authority to compel the education 
of any one, or to interfere with the private education which 
parents see fit to give their children. My conclusion, there- 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 143 

fore, upon this point is that (1), power to pass the act under 
consideration was not conferred in the general grant of 
legislative power, because neither at the common law, nor 
under the constitution of 1801, nor in the general customs 
of the people of this state prior to 1851, was that power 
supposed to extend to the subject of private education ; and 
(2) authority to pass it is not found in the article as to ed- 
ucation, which limits the legislative power to making such 
provisions as shall secure a " thorough imd efficient system 
of common schools." This is equivalent to a declaration 
in the constitution, that the legislature shall exercise no 
power over the subject of education except to establish 
common schools and make them efficient. 

The power conferred by article 6 is exclusive. I main- 
tain that when specific power over a particular subject is 
given, it will be presumed to be exclusive and withdraw 
that subject from a more general grant of power. It fol- 
lows, therefore, that even if in the general grant of legis- 
lative power the authority to interfere with private schools 
was included, it will be held to be withdrawn from that 
general grant by the specific grant in article 6. This doc- 
trine is recognized in Keeves v. Treasurer of Wood 
County et al., 8 0. S. 339. The constitutional provision 
under discussion Avas sec. 6, art. 13, as follows : " The 
general assembly shall provide for the organization of cities 
and incorporated villages by general laws, and restrict 
their power of taxation, assessment, borrowing money, con- 
tracting debts, and loaning their credit, so as to prevent 
the abuse of such power." 

The Court say : " It is urged in argument that inas- 
much as the power of authorizing assessments, as distinct 
from taxes proper, is by the language of the constitution 
recognized only in connection with its exercise by cities and 
villages, therefore, under the maxim expressio unius, etc., 
the power of the legislature to authorize assessments must 
be limited to its exercise by cities and villages. This argu- 
ment would be entitled to great weight, and it seems to me 



144 THE STATE OF OHIO VS. THE KEV. PATRICK F. QUIGLEY. 

conclusive weight, if the clause of the constitution referred 
to contained or was intended to express a grant of the power 
of assessment as distinct from that of taxation proper. In 
that case, the grant being in terms limited, the maxim expres- 
sio unius would fairly apply, and all implications of power 
beyond the terms of the grant would be held to be excluded. 
But such is not the case. That clause of the constitution 
does not contain, nor is it intended to express, any grant of 
the power of assessment. It merely mentions the power of 
assessment as an existing power, and does this simply, in 
a mandate upon the legislature to restrict its exercise and 
provide against its abuse by cities and villages. There be- 
ing in this clause of the constitution no express grant of 
the power of assessment, and no affirmative declaration of 
its existence, but a recognition of its existence by implication 
only, there is no case to which the maxim expressio unius, 
etc., can legitimately apply. By providing against the 
abuse of a power the constitution by inevitable implication 
recognizes the existence of l^at power." 

Applying the principles laid down in this case to the 
present one, we have this result. Article 6 of the con- 
stitution contains a grant of power over the subject of edu- 
cation. It expressly authorizes the establishment of an 
efficient system of common schools, and all implications 
beyond the terms of the grant must be held to be excluded. 
The general assembly may pass laws necessary to establish 
and maintain public schools, but it is not authorized to 
establish private or parochial schools, provide an efficient 
system for them, or to interfere with their management. 
The same principle which is laid down in the case last cited 
is recognized in the State vs. Frame, 39 0. S. 408, where it 
is said : " It has been claimed, because this last clause is 
in form a grant, of power, that it confers the only power 
possessed by the general assembly over the subject of in- 
toxicating liquors, on the theory that where specific power 
is given it will be presumed to be exclusive, and withdraw 
the subject from a mere general grant of power." 



THE STATE OF OHIO VS. THE REV. PATRICK E. QUIGLEY. 145 

111 conclusion, I call attention to the fact tliat article 6 
of the constitution is devoted to the subject of education 
with that word made the title of the article. The language 
employed is the language generally used in making a grant 
of power. The provisions of the article do not recognize 
the power to establish a common- school system as an ex- 
isting one, but as one which would have no existence with- 
out the grant ; or if the power to establish such system 
should be held to be included in the general grant of legis- 
lative power, then the article by its enunciations limits the 
subjects to which such power can extend, so that other 
subjects not mentioned in the article cannot be drawn with- 
in the scope of the power. The specific provisions that the 
*' general assembly shall make such provision ... as will 
secure a thorough and efficient system of common schools," 
withdraws from that body all other power to legislate upon 
the subject of private education, and, consequently renders 
the law under discussion unconstitutional. I submit, there- 
fore, that the jury should be directed to return a verdict of 
not guilty, because the general assembly had no power to 
pass the law under which the defendant was indicted. 

The Address to the Jury. 

Gentlemen of the Jury: The defendant, whom the evi- 
dence shows to be a priest of the Roman Catholic Church, 
is one of a class in this community which, judging from the 
statements made by the superintendents of public schools as 
to school attendance, must constitute nearly one third of our 
population. The members of the religious denomination of 
which the defendant is a priest are not opposed to education, 
but they have not sent their children to the public schools. 
They have established schools of their own, and contribute 
annually large sums to their maintenance and support. 
In addition to this, they pay their share of the public 
taxes for the keeping up of the public schools, thus not 
only educating their own children, but contributing to the 
education of the children of their neighbors. Under such 



146 THE STATE OF OHIO VS. THE KEV. PATRICK F. QUIGLEY. 

circumstances, gentlemen, I insist that the commonest 
fairness requires that they should be permitted to manage 
their own schools in their own way, provided they do no in- 
jury to others, and do not interfere with their neighbors in 
the control of their children. 

Some say that the public schools are good — good enough 
for them ; but the members of the church whom my client 
represents, say that they are not satisfied with them, and 
cannot in conscience send their children to them ; and 
this, gentlemen, it seems to me, should settle the point in 
controversy, so far as compelling children to attend public 
schools is concerned. Sec. 7 of the bill of rights declares : 
" Nor shall any interference with the rights of conscience 
be permitted." When one third of the population of a great 
city like this declares that a law does interfere with their right 
of conscience, it seems to me that its enforcement against 
them is in plain violation of constitutional provisions. 

But whatever may be said on that point, I insist that 
my client was justified in a violation of the law, if his act 
shall be held to be such, to make a case to be submitted 
to the courts, in order that the constitutionality of the act 
in question may be determined. 

Gentlemen, I maintained in your presence to the court 
that the law under which this indictment was found inter- 
fered with the management of parochial schools, and was 
on that account in violation of the fundamental law. If his 
Honor shall hold with me on the propositions of law I have 
discussed, your work will be easy ; btit lest he should not, 
I shall call your attention very briefly to some of the facts 
which have been developed in the case. 

I say in the first place, gentlemen, that this statute was 
never intended to require reports from the superintendent 
of schools. The language of the section for the violation 
of which defendant is being prosecuted is : " It shall be 
the duty of all principals and teachers of all schools to 
report the names of their scholars to the clerk of the board 
of education." 



THE STATE OF OHIO VS. THE HEY. PATRICK F. QUIGLEY. 147 

The question thus presented is, Is the defendant a prin- 
cipal or teacher in his parochial school ? 

The testimony shows that Dr. Quigley, if his relation 
be one other than that of a spiritual one as pastor of his 
congregation, is the superintendent of the schools, and 
has also the distinguishing marks by which the superintend- 
ent is known from the principal. A superintendent is one 
who has charge, with the power of direction ; the principal 
is the chief instructor. These are the definitions given by 
Worcester ; these are the definitions found in all the works 
of lexicography, and are the meanings of the word as un- 
derstood technically in the administration of the common- 
school system. 

The superintendent of the public schools has power of 
direction ; he visits the schools and inspects them. To 
him are referred all questions of incorrigibility or violation 
of discipline. He is in no sense a teacher. He does not 
engage in the work of instruction. He therefore makes no 
reports to the boards of education under this law. They 
are made by the principals of each ward school or by the 
teachers in a particular room. Mr. Compton could not 
make the report, unless others reported to him the names. 
He could not be indicted under this section, because it 
imposes no duty upon him. 

Dr. Quigley occupies precisely the same position in 
the parochial schools of St. Francis de Sales that Mr. 
Compton does to the public schools. There are in his 
parish six separate schools, each with a principal."^ Dr. 
Quigley is not the teacher of the children. He never en- 
gages in the work of secular instruction. He decides 
upon cases of breach of discipline and has general direction 
of the schools, just as the superintendent of the public 
schools over those under his charge. 

It follows then that Dr. Quigley, being neither the prin- 
cipal nor a teacher in his schools, is not liable to indict- 

*The number of schools at the time of the indictment was six; it has 
since been increased to nine. Q, 



148 THE STATE OF OHIO VS. THE REV. PATIUCK F. QUIGLEY. 

ment for not making tlie reports, because tlie law does not 
impose upon him tlie duty to make tliem. 

Harsh as I regard this law to be, it is not, gentlemen, as 
cruel as this prosecution. The law has humaneness enough 
to make exceptional provisions for conditions such as have 
been shown to exist in the city of Toledo. It declares that : 
"This law shall not be operative in any school district 
where there are not sufficient accommodations to seat 
children obliged to attend school under the provisions 
of this act." The law is not to apply to those cities where 
there are not sufficient accommodations for the children. 
r Sufficient seating accommodations ! What does the 
proof show upon this point ? Were there sufficient seat- 
ing accommodations in this city in April, 1890 ? The 
testimony shows that in the year 1890 there were in Toledo 
in round numbers 28,000 children between 6 and 21 years 
of age. There were 6000 between 16 and 21 years of age. 
There were, therefore, 22,000 between 6 and 16. All 
between 8 and 14 are compelled by the law to attend 
school ; some between 7 and 8, and all who cannot read 
English and are unemployed between 14 and 16. Say that 
the whole number of children between 6 and 16 were 
20,000. I know of no reason why the total population con- 
tinuing the same there should be more children of one age 
than another ; that would make 2000 children of each year 
between the ages named. But the population of the city 
has been steadily increasing ; therefore there must be more 
of the younger ages than the older. But say there is an 
equality, and you have 12,000 between the ages of 8 and 
14, and at least 1000 more between 7 and 8 and 14 and 13, 
making in all in this city 13,000 who might have been com- 
pelled in 1890 to attend school under this act. 

But how many seats were there in the public schools in 
that year? The proof shows that they did not exceed 10,500. 
Suppose that these children in Toledo had been organized 
as an army to march to school, the youngest at the head. 
When the 4000 between the ages of 6 and 8 had reached 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 149 

the school rooms and been seated, there would have re- 
mained 6500 seats for 13,000 children. Every one in Toledo 
knows that there were not sufficient seating accommoda- 
tions in the public schools in 1890 for those obliged by 
law to go there, and this prosecution proposes to compel 
children to attend school when the city has no places for 
them. 

But it may be said that there are private schools which 
have capacity for seating children which must be taken into 
consideration. But what private schools? Certainly, so 
far as this defendant is concerned, not all the private 
schools in the city ; for to none of them, except the school 
of which he is superintendent, could the children of his 
parish be sent. It might be that there are more than suf- 
ficient seating accommodations in certain private schools 
for those who have the right to attend them. But that 
does not relieve the city from providing sufficient seating 
accommodation for those who do not have them in the 
private schools which they have a right to attend. 

The evidence shows that the children of parents sup- 
porting parochial schools are not permitted to attend other 
parochial schools maintained by the parents of other 
children. The question, therefore, is in view of the provi- 
sion of the law on this subject, in the present case, whether 
there are sufficient seating accommodations in the public 
schools and in the schools of St. Francis de Sales for the 
children who have the right to atten^I the schools of St. 
Francis de Sales. If there are not, then the law is not oper- 
ative in this city, at least within the limits of that parish. 

We have shown that there are 600 pupils in that parish 
between the ages of eight and fourteen, and that there are 
seating accommodations for only 300. Suppose that a 
truant from this school should be arrested, what would be 
done with him ? He could not. be taken to the public 
school, for there is no place for him there ; nor to Dr. 
Quigley's school, for there is no place for him there ; nor 
to any other private or parochial school, because he has na 



150 THE STATE OF OHIO VS, THE REV. PATEICK F. QUIGLEY. 

right to go there, and the public authorities have no power 
to compel the child to go where he has no legal right to be. 
What shall be done with the other 300 children of that 
parish if the truant officer should see fit to arrest them for 
not attending school ? 

With no accommodations for them in the public schools, 
nor in the school of their own parish, nor in the other pri- 
vate schools, there is but one place left, and that the law 
points out — either the county's children's home, or, in the 
case of boys, the industrial school at Lancaster.* 

Gentlemen, a law which brings about such a result as 
this, or a constructions of its provision which requires it, 
works a gross injustice to the parent, the child, and the state. 
It is an injustice to the parent, because it deprives him of the 
services his child. The boy can do a hundred things about 
the house to help his parents. He can take care of his 
younger brothers and sisters. He can run errands for his 
mother. He can earn a little money to increase the fund for 
the support of the household. At eventide he can brighten 
the father's breast with his cheery talk, and lighten the 
burden of labor and toil which poverty has imposed. And 
when night has fallen the father and mother can sleep in 
peace, because they know the boy is under the shadow of 
their own roof, however humble it may be. Gentlemen, 
poverty is a misfortune, but Heaven keep away the day 
when the families of the poor are to be broken up, and 
their children to be dragged away to public homes and 
reformatories and reform, farms to be educated. 

It is an injustice to the child. It d eprives him o f the 
direction of his parents. It forces him away from the 
tender influences which surround the home, to place him 
among strangers. It substitutes the perfunctory ofiices of 
a superintendent and matron for the ever sleepless watch- 
fulness of a father and mother. It exchanges for the 
management a board of directors the loving control of 
home. It forces the boy into association with other boys, 
*Tbe county's Children's Home is an anti-Catholic institution. 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 151 

robs liim of the gentle communing of brother and sister 
growing up in the same family and under the same roof. 
It familiarizes the child with public officers, and warrants, 
and writs and arrests, and sentences. It makes him feel 
as though he were a criminal. It leads him to the path of 
crime ; strange will it be if it does not start criminal dis- 
positions in his mind. It puts restraints upon him un- 
natural to his years. He is in prison limits. The forests 
and streams which are full of delight to the child are shut 
out from him. His feelings become those of the slave. The 
thousand youthful hopes of his life are broken, and the 
aspirations of his soul can never be bright. When dis- 
charged from his imprisonment, with his education by the 
state completed, he returns to the city whence he was 
taken, a stranger to its ways and people, shunned by the 
boys with whom lie ought to have grown up, and embar- 
rassed in his efforts for employment by the very fact of the 
education which the state has forced upon him. 

And by this, gentlemen, the injustice is done to the 
state. The boys turned out from these reformatories and 
homes, who have been placed there as a result of judicial 
sentence, are marked by their comrades, and all who have 
received a voluntary education. If they want work, their., 
compulsory education is no recommendation. The state, 
which educated them, has no work for them to do. They 
are objects of suspicion by society in general. Under such 
circumstances it is almost impossible that they should be- 
come good citizens. Avoided by their neighbors, expelled 
by the community, shut out from opportunities of employ- 
ment and advancement, they will become the enemies of the 
state which created these conditions for them, by arresting 
and punishing them as criminals when they were only 
truants in the days of childhood. Such young men con- 
stitute the class from which in times of riot and revolution 
the ranks of anarchy are recruited. 

Gentlemen of the jury, leave the children at home, and 
though poverty may limit the comfort and chances of thoir 



152 THE STATE OF OHIO VS. THE KE\^. PATRICK F. QUIGLEY. 

lives, tliey will be Letter educated by the loving affections 
to which the family gives birth, than they ever can be by 
the arbitrary authority of the state. 

Gentlemen, so far as I am concerned, I leave the case 
with you, trusting that your verdict in this, the first com- 
pulsory education prosecution in the State of Ohio, will 
be for the rights of the parents, the liberty of the child, 
and thereby the true welfare of the state. 

Judge Pugsley's Charge. 

Thereupon the Court charged the jury as follows : 

PuGSLEY, J. — Gentlemen of the Jury : The law under 
\ / which the indictment in this case was found is entitled, " An 
act to compel children under fourteen years of age to attend 
school a certain length of time each year," and was passed 
• on the 15th day of April, 1889. The act, including all its 

amendments, contains numerous provisions and require- 
ments having for their object the compulsory education, 
under certain conditions and circumstances, of all children 
in the state between certain ages. 

The principle of this law is not a new one in this state. 
In the year 1877 a law was passed by the Legislature of 
this state making it the duty of every parent or other 
person having in his charge children under certain ages, 
or between certain ages, to send them to school a certain 
length of time each year, and imposing a fine upon every 
violation of this duty. Since the year 1877 down to the 
present time, the principle of compulsory education, or the 
enforced attendance upon school of the children in the 
state, has been a part of our legislation as to schools ; and 
until this case, so far as I am aware, the authority to j^ass 
such laws was never questioned in the courts. 

This law^ — the law involved in this prosecution — does 

not abridge the right or the duty of parents to educate 

I their children : it recognizes the right, and seeks to 

enforce the duty. The law does not interfere with 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 153 

tiie control or management of private schools. At- 
tendance upon a parochial or other private school is 
not forbidden. On the other hand, it is a full com- 
pliance with the law ; and children in the state who at- 
tend parochial or other private schools are not by this law 
compelled to attend public schools. The language of the 
law is : " Every parent, guardian, or other person having 
control and charge of any child between the ages of 8 and 
14 years shall be required to send any such child or 
children to a public or private school for a period of not 
less than 20 weeks in each year." But this requirement is 
not an absolute one. Under the provisions of the law, 
children may, in certain cases, be excused from attending 
any school, as where their physical or mental condition is 
such as to disable them from attending school, or where 
they are taught at home by some qualified person ; and 
perhaps in other cases specified in the law. 

This law, I say to you, gentlemen, is a constitutional 
and valid enactment. An extended discussion at this time 
will not be expected from the Court ; in fact, it is not nec- 
essary, as the reasons for this conclusion will sufficiently 
appear by a brief reference to some of the provisions of 
the constitution and the decisions thereunder of the 
Supreme Court of the state. 

In section 1, Article II., of the constitution, it is provided 
that " the legislative power of this state shall be vested in 
a general assembly, which shall consist of a Senate and 
House of Representatives. " " This provision," say the 
Supreme Court, " is not that the legislative power, as con- 
ferred in the constitution, shall be vested in the general 
assembly, but that the legislative power of this state shall 
be vested. That includes all legislative power which the 
object and purposes of the state government may require, 
and we must look to other provisions of the constitution 
to see how far and to what extent the legislative discretion 
is qualified or restricted. Hence the difference between 
the constitution of the United States and a state con- 



\/ 



154 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

stitution such as ours. In the former we look to see if a 
power is expressly given ; in the latter we look to see if it 
is denied or limited. Therefore, when the power of the 
general assembly to enact any particular law is drawn in 
question, the proper inquiry is, whether such an exercise 
of legislative power is clearly prohibited by the constitution. 
The grant of power being general, the question is as to the 
existence of a limitation arising from special prohibition ; 
and such prohibition must either be foi^nd in express 
terms, or be clearly inferable by Necessary implication from 
the language of the instrument, when fairly construed, ac- 
cording to its manifest spirit and meaning. 

It is not claimed in this case that the passage by the 
Legislature of compulsory education laws is specially pro- 
hibited by the constitution ; but it is argued that the power 
to pass such laws is impliedly prohibited by section 20 of 
Article I., which reads as follows : " This enumeration of 
rights shall not be construed to impair or deny others re- 
tained by the people ; and all powers not herein delegated 
remain with the people." 

Again it is fortunate that the Supreme Court of the state 
have given to us a very clear exposition of the meaning of 
this constitutional provision. " This clause " — that all 
powers not herein delegated remaiji with the people — the 
Court say, " means exactly what its words import ; but even 
from them a plain implication arises that the powers in and 
by the constitution delegated do not remain with the people, 
but are vested in the agents and officers of the government, 
to be exercised by them alone. Among the powers dele- 
gated by the constitution is the legislative power of the 
state, which is vested in the general assembly. Whatever 
limitations upon the power thus delegated to the general as- 
sembly may be found in other provisions of the constitution, 
it is quite clear that section 20 of Article I. does not impose 
any limitation upon it whatever. That section only de- 
clares that powers not delegated remain with the people. 
It does not purport to limit or modify delegated powers." 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 155 

If there was any doubt that the terms of the constitution 
whereby the legislative power of the state is vested in the 
general assembly are comprehensive enough to authorize the 
enactment of a law like the one in question, an examination 
of the provisions of the constitution relating to schools 
will remove all such doubt. By section 7 of Article I. it is 
made the duty of the general assembly to pass suitable 
laws to encourage schools and the means of instruction. 
By section 2 of Article YL it is made the duty of the general 
assembly to make such provision, by taxation or otherwise, 
as, with the income arising from the school trust fund, will 
secure a thorough and efficient system of common schools 
throughout the state. 

In commenting upon these constitutional provisions the 
Supreme Court say : *' The system of public education in 
Ohio is the creature of the constitution and statutory laws 
of the state. It is left to the discretion of the general as- 
sembly, in the exercise of the general legislative power con- 
ferred upon it, to determine what laws are ' suitable ' to 
secure the organization and management of the contem- 
plated system of the common schools." With this legis- 
lative discretion the Court has no power to interfere, except 
so far as its exercise is limited or restrained by the con- 
stitution. "All implied restrictioijs, which rest upon 
theory only, the people have been content to leave to the 
judgment and patriotism and sense of justice of their rep- 
resentatives." It is a well-established rule that the courts " 
are not authorized to declare a law unconstitutional and 
void, unless it is clearly in conflict with some provision of 
the constitution, and that every doubt must be resolved in 
favor of the law. No such conflict being shown between 
this law and any provision of the constitution, it follows 
that the Legislature had the lawful power to pass it, and 
that each and all of its provisions are binding upon all 
persons to whom they are applicable. If the law is unwise, 
or oppressive, or unjust, such fact is a good reason why 
steps should be taken to secure its repeal, or to secure the 



156 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

removal of any of its objectionable features, if it have any ; 
but it furnishes no excuse for the violation of the law. 
The remedy for unwise legislation cannot be administered 
by the courts. So long as the law is in force, it is the duty 
of all to obey it, and the duty of the courts, whenever oc- 
casion requires it, to enforce its penalties. 

The provisions of this law which the defendant is 
charged with having violated are contained in section 11, as 
amended April 25, 1890. This section reads as follows : 

It shall be the duty of all principals and teachers of all 
schools, public and private, to report to the clerk of the 
board of education of the city, village, or township dis- 
tricts in which schools are situated, the names, ages, 
and residence of all pupils in attendance at their schools, 
together with such other facts as said clerk may require, 
in order to facilitate the carrying out of the provisions of 
this act ; and the said clerk shall furnish blanks for said 
purpose, and said report shall be made in the last week of 
September, December, February, and April in each year. 

The penalty for neglect of duty under the law is pre- 
scribed by section 13, as amended April 25, 1890. This 
section reads as follows : 

Any person or officer mentioned in this act and designated 
as having certain duties to perform in the enforcement of 
any of its provisions, neglecting to perform any such duties, 
shall be liable to a fine of not less than twenty-five dollars 
nor more than fifty dollars for each and every offence. 

It is charged in the indictment that in the last week of 
April, 1890, the defendant was a principal of and in a cer- 
tain school in the city school district of the city of Toledo ; 
that he neglected, as required b}^ law, to report in said last 
week of April, to the clerk of the board of education of said 
city, the names, ages, and residence of the pupils then in 
attendance upon said school ; and that many days before 
the expiration of said last week in April he was furnished 
by said clerk with suitable blanks for the purpose of mak- 
ing said report. 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 157 

The question whicli is now to be submitted to you, and 
which you must determine from the evidence, is whether 
this accusation against the defendant is true in each and 
all of its essential parts. The burden of proof is upon 
the prosecution. The defendant is not required to establish 
his innocence. He is not required to show that this law 
imposes no duty upon him, or that he has not violated the 
law. On the other hand, before conviction can be right- 
fully claimed, it is incumbent upon the state to affirma- 
tively establish by evidence that the defendant committed 
the offence charged, and the evidence produced must be of. 
such a character, and so clear and convincing, as to satisfy 
you of his guilt beyond a reasonable doubt. 

If, after considering and weighing all the evidence, you 
entertain a reasonable, substantial doubt of the truth of 
this charge in any of its essential particulars, then it is 
your duty to say by your verdict that the defendant is not 
guilty. But if you have a clear, abiding conviction of the 
truth of the charge, if you are able to say that there is no 
other rational conclusion from the evidence than that the 
defendant committed this offence, then you are satisfied 
beyond a reasonable doubt, and in that case it is your duty 
to say by your verdict that he is guilty. 

The material facts which constitute the offence charged 
(n the indictment are — 

1. That the provisions of the law which have been cited 
^ere operative — that is, were in full force and effect and 
operation — in the city school district of the city of Toledo 
In the last week of April, 1890. 

2. That in the last week of April, 1890, the defendant was 
a principal of a school situated in said city school district. 

3. That in a reasonable time prior to the expiration of 
the last week of April, 1890, the clerk of the board of edu- 
cation of the city of Toledo furnished suitable blanks'^ for 
the purpose of enabling the defendant to make a report of 

* Mr. Coiiipton, the clerk, testified under oath that he furnished the 
blanke (i: tiie month of May, See also above, p. 9 and 10. 



158 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY, 

tlie names, ages, and residence of pupils attending said 
school. 

4. That the defendant neglected, in the last week of 
April, 1890, to report to the said clerk the names, ages, 
and residence of all pupils then in attendance at the said 
school. 

To convict the defendant .of the oifence charged, you 
must be satisfied beyond a reasonable doubt of the exist- 
ence of each and all of these facts : 

1st. "Was this law operative in the city school district 
of the city of Toledo in the last week of April, 1890 ? 

Sec. 9 of the law as originally passed, and which haj 
ever since been in force, contains this proviso : 

Provided that this law shall not be operative in any 
school district where there are not sufficient accommoda- 
tion to seat children compelled to attend school under the 
provisions of this act. 

It is contended on the part of the state that this proviso 
relates only to the preceding provisions of the law, which 
require children to attend school, and which have for their 
object the prevention of truancy, and that it does not relate 
to the subsequent provisions of the law, which make it the 
duty of principals and teachers to make report of the 
pupils in attendance at their schools. On the other hand, 
it is contended in behalf of the defendant that the proviso 
relates to each and all the provisions of the law ; that 
when it says this law shall not be operative, it means each 
and all the provisions of the law. On that subject I give 
you this instruction : If you find from the evidence that in 
the last week of April, 1890, the seating capacity of the 
schools in the city of Toledo was not sufficient to accom- 
modate children compelled to attend school under the pro- 
visions of the law, then no part of the law was then opera- 
tive. In that case this prosecution will not lie, and the 
defendant must be acquitted. 

The law as last amended was passed on April 25, 1890. 



THI: STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 15D 

The presumption is that it was in full force and operation 
in the last week in April, 1890, on and after April 25th, and 
unless this presumption is rebutted and overcome by the 
evidence in the case, if any, tending to show that the seating 
capacity of the schools was not sufficient to accommodate 
the children compelled to attend school, then you will be 
warranted in finding that the law was then operative. 

In the first instance, it is incumbent upon the defendant 
to show that this case is within the proviso — that is to say, 
it is incumbent upon the defendant in the first instance to 
show that in the last week in April, 1890, the seating ca- 
pacity of the schools was not sufficient to accommodate 
the children then compelled to attend school. But, as 
already stated, the burden of proof is upon the prosecu- 
tion, and the burden of proof remains with the prosecution 
during the whole trial. You are, therefore, to take into 
consideration all the evidence in the case, including the 
presumption, and from this determine whether, in point of 
fact, the seating accommodation of the schools was suffi- 
cient, and therefore whether, in point of fact, the law was 
operative. 

Before examining the evidence on this subject it will be 
well to ascertain from t^^e provisions of the law what chil- 
dren are compelled to attend school. These are — 

First. Children between the ages of 8 and 14 years, 
excepting such as are excused from attendance because 
their physical or mental condition prevents them from at- 
tending, or because they are taught at home by some qual- 
ified person. 

Second. Minors over the age of 14 and under 16 years, 
who cannot read and write the English language. 

These are the children who are compelled to attend 
school, either a public or a private school, by the provi- 
sions of this law. ~ 

Does the proof in this case show the number of children 
between the ages of 8 and 14, or the number of children 
between those ages who were excused from attending 



IGO THE STATE OF OHIO US. THE KEY. PATRICK F. QUIGLEY. 

scliool ? Does it show the number of children between 
the ages of 14 and 16 who could not read the English lan- 
guage ? 

The law requires children between the ages of 8 and 14 
to attend school for a period of not less than 20 weeks in 
each year. They are not compelled to attend school for 
more than 20 weeks in any year ; whereas by statute the 
public schools are required to be open from 24 to 44 weeks 
in each school year. Again, the law requires children be- 
tween the ages of 14 and 16, who cannot read and write 
the English language, to attend school not more than one 
half of each day, or to attend some evening school main- 
tained by the board of education, or to take private instruc- 
tion from some qualified person. Such children are re- 
quired to attend school only until the superintendent of 
schools shall certify that they can read at sight and write 
legibly simple sentences in the English language. 

All these provisions of the law must be taken into con- 
sideration in determining what seating accommodations 
were required for children compelled to attend school. 
The sufficiency of seating accommodations must depend 
upon the number of children required to attend school, 
and the length of time they are required to attend. 

There is evidence tending to show the enumeration 
made under the provisions of the law in July, 1889, and 
also in July, 1890, of the school youth in the city ; but this 
enumeration is of youth between the ages of 6 and 21 
years. It is manifest that if this enumeration is to be 
taken as a basis, there must be deducted from the enumer- 
ation the number of all children in the city who were not 
compelled by the terms of the law to attend the schools. 
There is evidence in the case tending to show the number of 
pupils who were in attendance upon the parochial and other 
private schools of the city. This evidence must be consid- 
ered, as attendance at parochial and other private schools 
is a compliance with the law, and children attending paro- 
chial and other private schools cannot be regarded as 



THE STATE OF OHIO VS, THE KEY. PATRICK F. QUIGLET. 161 

Being children witliin the meaning of tlie law, who were 
compelled to attend public schools. 

If the seating accommodations of all the schools in the 
city, both public and private, are to be considered, and if 
you assume that the seating accommodations of the private 
schools were equal to the number of pupils shown by the 
proof to have been actually in attendance upon such 
schools, then such seating accommodations should be 
added to what the proof shows were the seating accommo- 
dations of the public schools. But if the seating accom- 
modations of the public schools alone are to be considered, 
then the pupils between the ages of 8 and 14 who were in. 
attendance upon the private schools must be treated as 
children within the school age who were not compelled by 
the provisions of this law to attend public schools, and for 
whom, therefore, no seating accommodations were required 
in the public schools. 

I have thus touched upon some of these features of the 
law and the evidence, solely to aid you in considering and 
passing upon the question of fact whether or not in April, 
1890, the seating accommodations of the schools in the 
city were sufficient for the children compelled to attend 
school. Does the proof show with reasonable certainty 
the number of children Avho by this law were compelled to 
attend school ? Does the proof show with reasonable cer- 
tainty that the seating accommodations in the schools were 
sufficient for the children compelled to attend school ? Is 
the presumption that the law was operative and in force 
rebutted by the other evidence ? It will be your duty to 
consider all the evidence in the case, whether I have 
alluded to it or not, and give to it such weight as in your 
judgment it is fairly entitled to, and so determine whethei^ 
it is proved in this case beyond a reasonabie doubt that 
this law was in force and operative in the city of Toledo in 
April, 1890. 

2d. To convict the defendant it must also be found that 
in the last week of April, 1890, he was principal of a- 



102 THE STATE OE OHIO ^5. THE KEY. PATRICK F. QUIGLEY. 

scliool in the city school district of the city of Toledo. 
The language of the law is, " it shall be the duty of all 
principals and teachers of all schools, public and private, 
to report to the clerk." The principal of a school is the 
head of the school — the person who possesses and exer- 
cises chief authority in or over the school. It is not 
jiecessary that he should actually teach or instruct the 
pupils in the school, but it must appear that his authority 
and control over the school was such that he has the right 
and the power to teach and give instruction in the school, 
if he is so disposed. If the teachers and scholars in the 
St. Francis de Sales school were subject to the directions 
and control of the defendant in all matters relating to the 
management and discipline of the school, then the defend- 
ant was the principal of the school, although he himself 
was subject to the control and direction of a person or 
board higher in authority. It is not sufficient to show that 
he was the pastor of the church with which the school was 
connected, unless under the rules of the church as such 
pastor he was at the head and in charge of the school. 
To make him a principal within the meaning of this law, it 
is immaterial by what name he was called or what name 
he bore ; but it must be shown that he was at the head and 
in charge of the school. 

You may consider in connection with all the other facts 
the nature of the duty which the law imposes upon the 
principal of a school, and the relations, if any, which the 
defendant would sustain to the performance of that duty 
in behalf of this school. That duty is to report to the 
clerk of the board of education the names, ages, and resi- 
dence of the pupils in the school. If the information thus 
sought was not obtainable by the defendant, or if his rela- 
tions to the school and its teachers were not such that he 
could compel the information to be furnished, then he was 
not the principal of the school. But if he had the power 
to compel any teacher in the school to furnish the informa- 
tion, or if he had the power to prohibit and prevent any 



THE STATE OF OHIO VS. THE KEV. PATRICK F. QUIGLEY. 163 

teacher from filling the blanks or making the report, then 
such fact may be considered by you in connection with the 
other evidence in determining whether he was the principal 
of the school. If it be a fact that each teacher in the 
school had charge of the pupils in his or her room, and 
might properly be called a principal in that room, such 
fact is not decisive of the question here. Take the school 
as a whole, in all its departments and with all its teachers 
and pupils, and say who was the principal. Y/as it the 
defendant, or some other person, or a board ? Or was the 
school as a whole without a principal or a head ? 

3d. To convict the defendant, it must also be proved 
that the clerk of the board of education furnished blanks 
for the purpose of enabling the defendant to make the 
report required by the law, and that the blanks were fur- 
nished within a reasonable time prior to the expiration of 
the last week of April, 1890 — that is, within such time as 
would fairly and reasonably be required to enable the 
defendant to fill the blanks and prepare and make the 
report in the last week in April. The language of the law 
is, *' the clerk shall furnis^h blanks for said purpose." 
When, or how, or where he shall furnish these blanks is 
not stated. The question is raised, therefore, whether the 
clerk is required to take or send the blanks to the persons 
whose duty it is to make the report, or whether it is suffi- 
cient if he prepares the blanks and keeps them on hand in 
readiness for such persons. Under a reasonable and just 
construction of this language, it is the judgment of the 
Court that there should be a delivery of the blanks to 
the person who is expected to make t1ie report, or what 
amounts to a delivery. A tender or oli'er to deliver them 
is sufficient, if the person to whom they are offered has at 
the time an opportunity to take and receive them. If, 
under such circumstances, he refuses to receive the blanks, 
the fact that they are not put into his actual possession 
will afford no excuse for declining to make the report. 
Whether in this case suitable blanks were delivered or 



-Iffi*! 



164 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

tendered to the defendant, and whether, if so delivered or 
tendered, the defendant had thereafter what was, under all 
the circumstances of the case, a reasonably sufficient time 
for filling the blanks and making the report, are all ques- 
tions of fact which you must pass upon. 

4th. To convict the defendant it must be established by 
the evidence that he neglected in the last week of April, 
1890, to report to the clerk of the board of education the 
names, ages, and residence of all pupils in attendance upon 
his school. Neglect to make this report is the offence with 
which he is charged. In determining whether he is guilty 
or not of this offence, you must be guided and governed 
solely by the evidence in the case and the instructions of 
the Court. No consideration outside of the evidence or not 
warranted by the evidence should be permitted to influence 
your judgment. Bearing in mind the essential elements of 
this offence, it is for you to say whether or not each and all 
of them are established beyond a reasonable doubt. I am 
assured by the patient attention w^hich you have given to 
the testimony and the arguments, that you fully realize the 
importance of the case both to the state and the defendant, 
and that your sole aim and purpose will be to render a true 
verdict, according to the law and the evidence. 

Mr. Ritchie : If your Honor please, it becomes my 
painful duty, in order to preserve the questions that have 
been discussed, to note an exception to some portions of 
the charge of your Honor. 

We desire to except, if your Honor please, to each para- 
graph of the charge thus given which in substance charges 
the jury that this law does not abridge or limit the author- 
ity or right of the parent in the control or to control the 
education of his child. 

Also the paragraph of your charge which charges and 
declares that this law is a constitutional and valid enact- 
ment ; and in that connection we desire also to except to 
the refusal of the Court to give the request which was 
submitted to your Honor to be given to the jury. 



THE STATE OF OHIO VS. THE REY. PATRICK F. QUIGLEY. 165 

Also, we desire, if your Honor please, to except to the 
charge of the Court in all its parts as to the interpretation 
of the proYiso of section 9. 

We except to the charge that the presumption of law is 
that the law was operatiYe here, and that that is a matter of 
defence, and not for the state to prove it to be in operation. 

The Court : Of course I didn't say just that. You 
except to what was said on that subject. 

Mr. Ritchie : We except to what was said in that re- 
gard — all that was said by your Honor in regard to that 
subject. Your Honor did say, I think, that it is not neces- 
sary for the state to show that the law was in operation, in 
the first instance. The Court understands my view in that 
matter, and we desire to except to the charge as given in 
that behalf. 

We desire, if your Honor please, to except to the charge 
as given in regard to the requirements of the law as to the 
seating accommodations — in the regard that the accom- 
modations of the private or parochial schools, may be 
counted or superadded to the provisions made by the 
common-school system — or that, in other words, if not 
thus counted, the children in attendance upon those schools 
are to be excluded and not counted as being children that 
are required to attend school under the operations of this 
act. 

I desire also, if your Honor please, to except to the 
charge — 

The Court : I desire to suggest that each clause and 
each sentence be excepted to. 

Mr. Ritchie: It is difficult for me to enumerate, but I 
desire to except to the charge as given in the definition of 
the word " principal " as used in this law, and all that part 
of the charge. 

We desire also to except to the charge as given in 
regard to the time at which the blanks were to be furnished 
— a sufficient length of time prior to the expiration of the 
last week in April to reasonably enable the report to be 



166 THE STATE OF O-HIO VS. THE KEY. PATRICK F. QUIGLEY. 

made ; our idea being that tlie}^ should be furnished before 
the last week in April, so that the party required to make 
the report might have the entire week in which to file or 
furnish the information. 

If your Honor please — it is not too late — I think your 
charge covered all points that were made, except the second 
proviso in section 9, and in order to save that question, we 
now ask your Honor to say to the jury that it is incumbent 
upon the state, before the prosecution can be carried on or 
conducted, and before a conviction can be had, to prove to 
the jur}^ to their satisfaction, beyond a reasonable doubt, 
that the accused party was notified by some competent 
authorit}^ that he was acting in violation of law, as being a 
feature essential to the maintaining of the prosecution. 

The Couet :" (To the stenographer.) You may note that 
the request is refused. My judgment is that it does not 
apply to section 13. 

(Defendant excepted to said refusal.) 

Mr. EiTCHiE : Mr. Hurd has one or two points that he 
desires to indicate to the Court, and I have asked him to 
note the exceptions, as he could do it in better form. 

Mr. HuKD : We also desire to note exceptions to all 
that part of the charge upon the proposition that the law 
ioes not interfere with parochial schools. 

Also, to the omission to say to the jury that children 
between 14 and 16 years of age not employed are obliged 
to attend school. 

The Court : If that is a part of the law, I would say 
that to them. I didn't undertake to go through all the 
provisions of the law. If that is a part of it, I will state it 
now. 

Counsel for the State : We have no objection to that 
being stated. 

Mr. HuED : I will therefore withdraw this last excep- 
tion. 

The Court : Gentlemen, you will be provided with the 
indictment and with two blank verdicts — one guilty and 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 167 

one not guilty. Upon retiring to your room you will select 
one of your number as foreman, and when you have agreed 
upon your verdict your foreman will sign the blank. 

We will say to you that in a case like this, after the 
case is submitted, you are required by law to be kept to- 
gether, and not to separate until you have agreed upon 
your verdict and been discharged by the Court. It follows, 
therefore, that you will probably take dinner here. 

Thereupon the jury retired, and in ten minutes an- 
nounced that their verdict was ready ; it was in favor of the 
state and against the defendant. 

Thereupon defendant, within three days thereof, by his 
counsel, presented a motion in arrest of judgment and a 
motion for a new trial of this cause. 



168 THE STATE OE OHIO VS. THE KEV. PATKICK E. QUIGLEY. 



MOTION FOE NEW TEIAL. 

On June 8, 1891, the motion for a new trial was heard. 
After arguments of counsel the Court denied the motion, and 
the judge filed an opinion giving his reasons for such 
denial, as follows : 



IN THE COUET OF COMMON PLEAS OF LUCAS 
COUNTY, OHIO. 

The State of Ohio v. Pateick F. Quigley. 

Opinion on Motion in Arrest of Judgment and for a New 

Trial. 

PuGSLEY, J. — The defendant in this case was found 
guilty by the jury of violating sec. 11 of the act of April 15, 
1889, as amended April 25, 1890, in neglecting, as principal 
of a school, to report to the clerk of the board of education 
the names, ages, and residence of the pupils in attendance 
at his school. Two motions have been filed and argued — 
a motion in arrest of judgment and a motion for a new trial. 
Upon the argument, two grounds only were urged in sup- 
port of these motions. 

1st. That the law does not prescribe any penalty for 
the neglect by the principal of a school to make the report 
required of him — in other words, that such neglect is not 
a punishable offence. 

2d. That the offence of neglecting to make the report, 
if it is an offence, is not within the jurisdiction of this court 
and cannot be prosecuted b}^ indictment. 



THE STATE OF OHit) VS. THE REV. PATRICK F. QUIGLEY. 1G13 

Sec. 11 of tliG act provides that it shall be the duty of 
all principals and teachers of all schools, public and private, 
to report to the clerk of the board of education the names, 
ages, and residence of all pupils in attendance at their 
schools. 

Sec. 13 provides that any person or officer mentioned in 
the act and designated as having certain duties to perform 
in the enforcement of any of its provisions, neglecting to 
perform any such duties, shall be liable to a fine of not less 
than twenty-five dollars nor more than- fifty dollars for 
each and every offence. No other section of the act pre- 
scribes any penalty for the violation of duty by the prin- 
cipals of schools ; so that, in order to support this indict- 
ment, it must clearly appear that principals of schools are 
embraced within the terms of this section. 

It is admitted that the principal of a school is a person 
mentioned in the act and designated as having certain 
duties to perform, but it is denied that he has duties to 
perform *4n the enforcement of any of its provisions." -It 
becomes necessary, therefore, to determine the sense in< 
which theso words, " in the enforcement of its provisions," 
are used in the statute. It is contended in behalf of the 
defendant that a person having duties to perform in the 
enforcement of any of the provisions of the law is one who is 
required not simply to obey the law, but to enforce obedience 
to the law or to compel others to obey the law, thus con- 
struing the statute as if it read, " Any person having duties 
to perform in the enforcement [by himself] of obedience to 
the law," or, " Any person whose duty it is to compel others 
to perform their duties under the law." And it is claimed 
that, as the principal of a school is not required to see that 
the duties which the law imposes upon others are per- 
formed, he has no duty to perform in the enforcement of 
any of the provisions of the law, and is therefore not liable 
to the penalt}^ prescribed in sec. 13. 

The duty of enforcing the law — that is, of seeing that 
the provisions of the law are carried out — rests primarily 



170 THE STATE OF OHIO I'-S. THE KEY. PATRICK F. QITIGLEY. 

with tlie board of education. Bj sec. 6 of tlie act, iu cities 
of the first and second class, the board of education is 
required to employ one or more truant officers to assist 
in the enforcement of the act, and in village, and town- 
ship districts the board of education is required to ajDpoint 
some constable or other person as truant officer. In sees. 
6, 7, 8, and 9 the duties of the truant officer are defined. 
These duties are : to investigate all cases of truancy ; to 
make complaints against parents and other persons having 
legal charge of children for neglect to send such children 
to school ; to institute proceedings against those who vio- 
late the law ; and, generally, to render such services as the 
superintendent of schools or the board of education may 
deem necessary for the preservation of the morals and good 
conduct of school children, and for the enforcement of the 
act. An examination of the entire act will show that truant 
officers are the only persons named in the act who are re- 
quired to see that the various duties imposed by the act are 
performed. All other persons named in the act — parents, 
»guardians, minors, employers, the superintendent of schools, 
the clerk of the board of education, and principals and 
teachers of schools— are required only to perform certain 
specified duties. These duties are important and essential 
in the carrying out of the provisions of the law, but none 
of these other persons are required to enforce the law — 
that is, in the sense iu which the word " enforce " is used 
by counsel, to compel others to perform their duties. It 
follows, if these words, "in the enforcement of any of the 
provisions of the act " have the meaning ascribed to them, 
that truant officers are the only persons who are subject to 
the penalty prescribed in sec. 13. 

Two reasons are apparent why such a construction of 
the statute is not reasonable. In the first place, if truant 
officers alone were intended to be made liable to the pen- 
alty, it is not probable that the Legislature would have used 
so much circumlocution to express their meaning. Instead 
of the provision that " any person or officer mentioned in 



THE STATE OF OHIO VS, THE KEV. PATRICK E. QUIGLEY. 171 

this act and designated as having certain duties to perform 
in the enforcement of any of its provisions, neglecting to 
perform any such duties, shall be liable to a fine," a simple 
provision that " any truant officer neglecting to perform any 
of his duties shall be liable to a fine," would have been 
sufficient. 

In the next place, in construing a statute, effect, if pos- 
sible, must be given to every clause and every word. The 
words of the section are : "Any person or officer neglecting 
his duties shall be liable to a fine." If the construction of 
the statute contended for is correct, the words " any per- 
son " are redundant and must be rejected as meaningless. 
It is said that the words " any person" were inserted as well 
as "any officer" out of abundant caution, as the board of 
education in township districts is authorized to appoint a 
constable or other person as truant officer. But truant 
officers when appointed, whether by the board of educa- 
tion in cities or in townships, are known only as officers, 
and are so designated throughout all parts of the act. I 
conclude that other persons than truant officers were in- 
tended to be made subject to the penalty for non-perform- 
ance of duty, and am of the opinion that the language of 
sec. 13, when fairly construed in connection with all other 
parts of the act, clearly indicates such intent. 

The language of a statute must be construed, not in any 
strained, or narrow, or unusual sense, but in its fair and 
ordinary sense, with reference to the context and in view of 
the general scope and purpose of the statute. The entire 
act must be considered. One part must not be construed 
so as to render another part of no effect, or so as to defeat 
the manifest intention of the Legislature ; but, if possible, 
all parts should be made to harmonize, each with the 
other. A construction which will promote the object of 
the law should be favored — not one which will defeat it. 

The enforcement of the law, according to the ordinary 
meaning of the words, is putting the law in execution — the 
carrying out of the provisions of the law. In a legal and 



172 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

popular sense, a law is enforced when all its provisions are 
carried out, when all the duties imposed by it are per- 
formed. The enforcement of the act necessarily includes 
the performance by principals of schools of the duty to 
make these reports. If the duty is not jDerformed, the act 
is not enforced. So that it is properly said that the prin- 
cipal of a school has a duty to perform in the enforcement 
of the act (not in the enforcement of the act by himself — 
the law does not say that — but in the enforcement of the 
act by those empowered to enforce it), or in the carrying 
out of the provisions of the act. 

In sec. 11 of the act it is provided that principals of 
schools shall make the reports in order to facilitate the 
carrying out of the provisions of the act— that is, to render 
easy or less difficult the carrying out of the provisions of 
the act. In the opinion of the Legislature, it is important, 
if not essential, to the efficient workings of the law, that 
these reports should be made. With the aid of the in- 
formation thus obtained, the board of education will know 
what children are attending school as required by law, 
and will so be better able to accomplish the purposes of 
the act. If the making of these reports facilitates the 
carrying out of the provisions of the law, as the Legislature 
have declared, certainly the duty of making the reports is 
one that is incumbent upon the principals of schools in 
the enforcement or carrying out of the provisions of the 
law. 

A narrow construction of these words, " in the enforce- 
ment of any of the provisions of this act," renders the 
power to enforce the act given to truant officers entirely 
nugatory so far as principals of schools are concerned, and 
makes the different parts of sec. 13 inconsistent with each 
other. The proper inquiry is whether, in the enforcement 
or carrying out of any of the provisions of the act, the 
principal of. a school is required to perform any duty. 
Clearly he has such a duty to perform ; and therefore, for a 
violation of this duty, he is subject to the penalty prescribed 
in sec. 13. 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 173 

Tlie second ground urged in support of tlie motion is, 
tliat this court lias no jurisdiction over the offence. The 
act as originally passed made no provision as to the courts 
in Avhich violations of the act should be prosecuted , but 
sec. 13, as amended April 25, 1890, contains this provision : 
"And mayors, justices of the peace, and probate judges 
shall have jurisdiction to try the offences described in this 
act, and their judgment shall be final." It is claimed that 
by virtue of this provision no other court or tribunal than 
those named has jurisdiction — in other words, that the 
jurisdiction of mayors, justices of the peace, and probate 
judges is exclusive. Under the constitution of the state 
the court of common pleas has such jurisdiction as is con- 
ferred upod it by law. Section 456 of the revised statutes 
defines the jurisdiction of the court of common pleas in 
ci^dl and criminal cases As to criminal cases it provides 
as follows : 

The court of common pleas shall have original juris- 
diction of all crimes and offen-ces, except in cases of minor 
offences the exclusive jurisdiction of which is vested 
in justices of the peace, or that may be vested in courts 
inferior to the common pleas. * 

Under this section, without any doubt, the court oi 
common pleas has jurisdiction over all the offences against 
this act, unless the exclusive jurisdiction of such offences 
is conferred upon mayors, justices of the peace and probate 
judges. Exclusive jurisdiction is not conferred upon these 
magistrates in express terms ; is it conferred by necessary 
implication ? It is well settled that when jurisdiction over 
an offence is in one court, and a statute is passed simply 
conferring jurisdiction over the same offence upon another 
court, this leaves the jurisdiction concurrent in botL 
courts, and either can try the case. And the rule requir- 
ing a strict construction of penal statutes does not apply 
to the matter of jurisdiction ; all doubts and presumptions 
are in favor of the jurisdiction of the tribunal exercising it. 
(1 Bishop on Criminal Prac, sec. 315; Bishop on Statutory 



174 THE STATE OF OHIO VS. THE KEV. PATKICK F. QUIGLEY. 

Crimes, sees. 164, 198 ; Com. v. White, 8 Pick. 453 ; Com. v. 
McCloskey, 2 Eaivle, 369 ; Smith v. People, 47 N. Y, 330, 
341.) 

While not disputing these propositions, counsel claim 
that this case comes under another well-established rule, 
which is, that when a new offence is created by statute, or 
when an act is made unlawful which was lawful before, 
and the statute provides a specific remedy against such 
new offence by a particular sanction and method of pro- 
ceeding, that method of proceeding and none other must 
be pursued. (Com'rs v. Bank, 32 0. S. 194.) 

It is not clear upon authority how far this rule extends 
in the matter of the jurisdiction of courts in criminal cases, 
when there is a general statute conferring jurisdiction upon 
a particular court over all offences. The English case of 
Eex V. Kobinson, 2 Burrows, 799, decided in 1759, is 
usually referred to as containing the first clear exposition 
of the rule. In that case the defendant had been convicted 
upon an indictment for refusing to obey an order of the 
general quarter sessions requiring him to maintain certain 
minor children. The statute under which the indictment 
was found fixed a particular penalty and prescribed a sum- 
mary remedy for recovering the penalty. A motion was 
made by the defendant to arrest the judgment on the 
ground that the summary remedy given by the statute was 
exclusive. Lord Mansfield refused to arrest the judgment, 
and held that the offence was properly indictable. In de- 
ciding the motion he said that— 

The true rule of distinction seems to be that when the 
offence intended to be guarded against by a statute was 
punishable before the making of such statute, prescribing 
J. particular method of punishing it, then such particular 
remedy is cumulative, and does not take away the former 
remedy ; but when the statute enacts that " the doing of any 
act not punishable before shall for the future be punishable 
in such and such a particular manner," then it is necessary 
that such particular method be specifically pursued, and 
not the common-law method of indictment. 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLE\ 175 

No case is cited holding that, when a general statute 
confers jurisdiction upon a particular court over all of- 
fences, such jurisdiction is taken away by a later statute 
creating a new offence and conferring jurisdiction over the 
offence on another court, but not making it exclusive. On the 
other hand, there is authority for holding that in such a case 
the jurisdiction conferred hj the general statute still remains. 

I refer to the case of Allen v. State, 5 Wis. 329. That 
was a conviction in the Circuit Court of Wisconsin, under 
an indictment for selling intoxicating liquors without a 
license. I will read from the opinion of the court, on page 
334, what is said on this subject : 

The first point made is that the circuit court has no 
original jurisdiction of this offence, it not being indictable 
by the law of the state. Sec. 5 of chap. 162, of the Session 
Laws *of 1851 provides that, if any person shall sell in- 
toxicating liquors without first having obtained a license 
according to the provisions of this act, he shall be deemed 
guilty of a misdemeanor, and on conviction thereof shall be 
punished by a fine. The sixth section gives to justices of 
the peace power to try and determine all offences growing 
out of the provisions of the act, but the act nowhere pro- 
fesses to give the justices' court exclusive jurisdiction of 
such offences, or to prohibit the circuit court from taking 
cognizance of them by indictment. Such being the case, 
the circuit court undoubtedly has original jurisdiction of 
all offences against the act. By sec. 8 of Art. YII. of the con- 
stitution the circuit courts have original jurisdiction of all 
matters, civil and criminal, not thereafter prohibited by 
law ; and by sec. 6 of chap. 83 of the Revised Statutes the 
said courts have power to hear and determine all cases of 
crime and misdemeanor not exclusively cognizable by a 
justice of the peace. The act of selling intoxicating liquors 
without a license being made a misdemeanor by the 
statute, and the justices' court not having exclusive juris- 
diction of the offence, the circuit courts have original juris- 
diction of the offence. (See also State -y.Wister, 62 Mo. 592 ; 
People V. Hogan, 55 Han. 391.) 

But conceding the rule to be as broad as is claimed, 
does this case come within the rule ? In other words, is 
the offence with which the defendant is charged a new 



176 THE STATE OF OHIO ^^s^ THE liEV. PATRICK F. QUIGLEY. 

offence, created by the act of 1890, which confers juris- 
diction upon mayors, justices of the peace, and probate 
judges ? Sec. 11 of the act, as originally passed April 15 

1889, required all principals of all schools to report the 
names, ages, and residence of the pupils in attendance at 
their schools. This section was first amended April 2, 

1890. The only change made by the amendment was hi 
requiring these reports to be made in special districts as 
well as in city, village, and tow^nship districts. The section 
was again amended April 25,1890. The only change made by 
this last amendment was in making it the further duty of 
principals to report to the truant officer all cases of truancy 
in their schools. Sec. 13 of the act, providing for the 
penalty, as originally passed April 15, 1889, was precisely 
the same as it is now, except that by the amendment of 
April 25, 1890, the clause Avas added conferring jurisdiction 
upon mayors, justices of the peace, and probate judges. 

It will thus be seen that continuously from the time the 
original act w^ent into effect, down to the present time, it has 
been the duty of all principals of schools in city dis- 
tricts to report to the clerk of the board of education the 
names, ages, and residence of the pupils in their schools. 
No change of the original law in this particular was made 
by any of the amendments. And the defendant is charged 
in the indictment only with a violation of this duty. He 
is not charged with a violation of any of the new duties im- 
posed by the amendments. It will also be observed that 
continuously from the time the original act went into 
effect, down to the present time, the violation of this par- 
ticular duty has been an offence for which the punishment 
has always been the same — namely, a fine of not less than 
$25, nor more than $50. So that the offence with whicl 
the defendant is charged is not a new offence, created by 
the act of 1890, which confers jurisdiction upon mayors, 
justices. of the peace, and probate judges. It was an 
offence before the passage of that act,* punishable in the 

* Only under the Act of April, 1889, wliich act was repealed April 2, 
1890, before tlie indictment in the case was found. See Laws of Ohio, vol. 
87, p. 146. See, also,- pp. 486 to 489, below. 



THE STATE OF OHIO VS. THE KEY, PATRICK F. Q,UIGLEY. 177 

same manner as now, and over-wliicli tlie court of common 
pleas had undoubted jurisdiction. It follows tliat nothing 
but express words of exclusion will oust this court of the 
jurisdiction which it had over the offence under the general 
statutes of the state. The prosecution of the offence under 
the act of 1889 was governed, not by that act, but by sec, 
456, E. S.,^ which gives to this court jurisdiction. This sec- 
tion was in no way affected by the repeal of the act of 1889,, 
but still remains in full force. If we suppose that sec. 
456, R. S., under which this court had jurisdiction over the 
offence, had been in terms incorporated in the act of 1889, 
and that it still remained unrepealed, it could not be suc- 
cessfully claimed that the amendment of sec. 13 would de- 
prive this court of jurisdiction. In effect, that was the 
state of the law at the time the amendment was passed. 

The offence charged in this indictment was indictable 
under the general statute at the time of the passage of the 
act of 1890, which conferred jurisdiction upon mayors, jus- 
tices of the peace, and probate judges; and such jurisdiction 
not being in terms exclusive, and the general statute still 
being in force, the offence is still within the jurisdiction of 
this court, and may be prosecuted by indictment. 

Each of the motions made in this case is therefore over.- 
ruled. 

Defendant, by his counsel, duly excepted to the over- 
ruling of each of said motions. 

And thereupon the Court pronounced sentence, that the 
defendant, Eev. Patrick F. Quigley, rector of St. Francis 
de Sales Church, Toledo, Ohio, be fined $25 and costs, and 
stand committed until the same be paid. 

Notice of appeal having been given, the execution of 
the sentence was stayed, and thereupon the case went to 
the circuit court on writ of error, where it was heard on 
the 18tli day of September, 1891, as will appear on pages 
to follow. 



Iln tbe Siytb Circuit Court of tbe State of ®bio 

in and for the County of Lucas, on the \Sth day of 
September, 1891. 

Hon. C. H. Sceibner, presiding; 
Hon. R. a. Bentley, ) . 
Hon. George E. Haines, p^^^- 



THE STATE OF OHIO, 

Prosecutor, 
vs, 

PATRICK F. QUIGLEY, 

Defendant and Plaintiff in Error, 



APPEAL FROM TEE COMMON PLEAS COURT OF LUCAS 
COUNTY; PUG8LET, JUDGE. 

ARGUMENT OF EDMUND F. DUNNE, 

of Counsel for Defendant, 

1, 

Statement of Case. 

On April 25, 1890, the state of Ohio enacted a Compul- 
sory Education Law, fixing a certain standard of secular 
instruction, and compelling all children between eight and 
fourteen years of age to receive that instruction in certain 
state schools, unless they were receiving the same instruc- 
tion in private or parochial schools. 

178 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 179 

A part of the law required principals and teachers in all 
schools to make certain quarterly reports to state officers. 

The defendant, a priest of the Catholic Church in the 
city of Toledo, having charge of a parish there, and inci- 
dentally a pastoral relation to the Catholic school of said 
parish, did not make these reports ; wherefore he was in- 
dicted by the grand jury of said Lucas County, arrested and 
put on trial in the Court of Common Pleas, for such alleged 
violation of said law. 

He resisted that prosecution on various grounds : that 
he was not a person required to make these reports, not 
being either a principal or teacher in said schools ; that no 
compensation was provided for the work demanded, and 
that he could not be compelled to involuntary servitude ; 
that even if he could be so compelled, his duty to make the 
report was not established ; that the law by its own terms 
was not in force in his parish, for lack of accommodation in 
public schools ; that under the amended law the Court of 
Common Pleas had no jurisdiction ; and for other reasons 
shown in the bill of exceptions, but finally for the reason 
that the law was unconstitutional on two grounds : first, not 
being expressly authorized by the constitution, and second, 
because impliedly forbidden by the constitution. 

It was on this last point alone that I spoke in the court 
below, and it is on this point alone that I desire to offer 
some considerations here. 

In the court below I undertook to show, first, that the 
constitution of the state of Ohio is based upon the recogni- 
tion of the paramount authority of the natural law, that is 
to say, of that natural law which follows from a recognition 
of the created state of man, the existence of God, and an 
ever continuing Divine Providence controlling the affairs of 
men, whence the existence of certain natural, inherent, and 
inalienable rights of man, all of which are expressly de- 
clared by the constitution to be retained by the people, 
and to be forever held sacred and inviolable. 



180 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

Second, that the right of the parent to control the edu- 
cation of his child was one of these natural rights. 

Third, that the Ohio Compulsory Education Law was 
a violation of that natural right, and therefore could not be 
recognized by the courts as a valid, constitutional laWo 

The learned judge below declined to charge that the 
law was unconstitutional, holding, as reported by the court 
stenographer, as follows : 

" This law does not abridge the rights or the duty of 
the parents to educate their children ; it recognizes the 
right, and seeks to enforce the duty. The law does not in- 
terfere with the control or management of private schools. 
Attendance upon a parochial or other private school is not 
forbidden. On the other hand, it is a full compliance with 
the law, and children in the state who attend parochial or 
other private schools are not by this law compelled to at- 
tend public schools." 



Keview of that Decision. 

Now, if the court please, I wish to urge, first, that the 
decision of the court below cannot be sustained by that 
course of reasoning. 

The law contains mere attempted restrictions on the 
parents' liberty than are set forth in that argument. 

The law begins in the very first section by saying: 
" That all parents, guardians, and other persons having the 
care of children shall instruct them or cause them to be 
instructed in spelling, reading, writing, English grammBr, 
geography, and arithmetic." Here at the very outset is an 
attempted interference with the control and management of 
private schools. The law prescribes the course of studies 
which shall be followed, and the age at which the child 
shall study these branches of learning, and also the length 
of time in each year, and the consecutiveness of the time, 
which shall be devoted to that study. What more effective 



THE STATE OF OHIO VS. THE KEY. Pi^.TRlCK F. QUIGLBY. 181 

control of a school could you have ? The rights of the 
parents are therefore abridged as to private schools. 

And how is it with home instruction ? Is the parent 
free to control the education of his children there ? By no 
means. The law says he shall be free to have his children 
taught in his own home, only by some " qualified person." 
Now, will not the state claim the right to decide in its own 
courts who is or who is not such qualified person ? But it 
says further, that he may not escape the obligation of put- 
ting his children into the hands of strangers, unless he, 
even in his own home, have his children taught " in such 
branches as are usually taught in primary schools." 

This law, therefore, undertakes to prescribe the course 
of study which a parent's children must follow, even in his 
own home. 

Primary education includes all below the grade of sec- 
ondary. Secondary begins with the college ; therefore, 
under this law, a parent may not keep his children out of 
the hands of strangers, unless he gives them instruction at 
his own expense, and possibly against his own wish, in all 
branches of learning which the state may order to be 
taught in its primary schools. 

It is true, as the learned judge below stated, that at- 
tendance at private schools is permitted ; but what he did 
not state is, that those private schools must give the same 
course of instruction as is given by the state, or else at- 
tendance there will not be permitted. And is that no inter- 
ference with the control or management of those private 
schools ? 

The parent may educate his children at home at his 
own expense, provided he gives them the education the 
state prescribes ; if not, the state will send its truant officer 
to arrest those children and force them into schools which 
the parent abhors. Is that no interference with parental 
rights ? 



182 THE STATE OF OHIO VS. THE KEV. PATRICK F, QUIGLEY, 



11. 

Eeal Basis of the Law. 

This law cannot be defended on the claim that it does 
not interfere with parental rights, or with the management 
and control of private schools. It can be defended only on 
the ground. that to the state, and not to the parent, belongs 
the right to control the education of the child, to deter- 
mine what shall be sufficient home education, and what 
shall be sufficient private-school education, and in the case 
of the failure of the parent to give such education at his 
own expense, that the state may take his children from 
him, and force them into state schools, to receive at the 
hands of strangers such instruction as the state may choose 
to give. 

That is the scope of the law ; that is the claim the state 
makes here, and the question we must discuss in this 
branch of the case is whether or not the state has that 
right ? 

And this brings us again to the great question as to 
what are the various rights in this matter ? What are the 
rights of the state, the church, the family, the child, the 
parent ? How do they arise ? Whence do they proceed ? 
How ma}^ they be enforced, when and by whom, and to 
what extent, and may they be varied under different cir- 
cumstances, and if so, how and when and why ? 



Some Answers given. 

In my argument in the court below I tried to answer 
some of those questions, though my effort there was mainly 
to show what were the rights of the parent. It was objected 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 183 

there that I had not sufficiently considered the rights of 
the child; that the child had rights in the matter of educa- 
tion as well as the parent, and that it was just as much the 
duty of the state to regard the rights of the child as those 
of the parent, and really somewhat more, since the child 
was the weaker party, and presumably in need of protec= 
tion: all of which is consciously or unconsciously a concur- 
rence in the policy of the new school, which seeks to destroy 
the family by exalting the wife and child at the expense 
of the head of the family. 

The Encyclical. 

My argument in the court below was made before the 
recent great Encyclical on the condition of labor was pub- 
lished. 

In that Encyclical the Holy Father, treating of the 
question as to when the state may interfere to protect indi- 
vidual rights in the family, uses this language : 

" In like manner, if within the walls of the household 
there occur great disturbances of mutual rights, the public 
power must interfere to force each party to give the other 
what is due." 

This language has been claimed by some to be a con- 
fession by the Holy Father that the state has a right to 
enact compulsory education laws in order to force the 
parent to give to the child what is due to him in that 
regard. 

But the Holy Father in the same Encyclical goes on to 
say; 

"By the state we here understand, not the particular 
form of government which prevails in this or that nation, 
but the state rightly understood; that is to say, any 
government conformable in its institutions to right reason 
and natural law, and to those dictates of the divine wisdom 
which we had expounded in the Encyclical on the Christian 
Constitution of the state.*' 



184 THE STATE OF OHIO V8. THE KEY, PATEICK F. QUIGLEY. 

If we turn to that Encyclical we find that he declares 
there that he means a Christian state, — one which not only 
recognizes God as the author of all civil power and authority,- 
but also recognizes His divinely established church as the 
only true church, and makes public, official profession of 
that fact ; a state which under the influence of that church 
should govern justly, yet with so much parental love and 
care that it " should reflect, as it were, an image of divine 
power and of divine providence." 

After thus showing the kind of state he means, he goes 
on to show the kind of state he does not mean. 

He says there is a new kind of state before the world 
lately — a product of modern revolutionary ideas ; a state 
the chief principle of which is the declaration that because 
men are equal by birth and nature, they must be equal in 
everything else, each independent of any authority of 
another, each free to think and act as he likes with regard 
to all things; a state which passes over God as if there were 
no God, or as if He cared nothing for human society, or as 
if men as individuals or as a society owed nothing to God ; 
a state which believes that there should be no religion 
publicly professed by the state, bat equal rights assigned 
to all so long as social order incur no injury thereby ; 
where all questions concerning religion are to be referred 
to private judgment, and every one allowed to follow which 
he prefers, or none at all, if he approve of none ; which 
assumes control of marriage and divorce, and treats the 
church, not as a sovereign independent power, but simply 
as a society subject to state laws like any other society in 
the state. As to this new kind of state he says : 

" Natural reason itself convinces us that such opinions 
about the ruling of a state are very widely removed from 
the truth." He says of this kind of state, not that its func- 
tions are limited to the preservation of order, but that such 
a state has not in itself sufficient power to secure the quiet 
permanence even of order. 



THE STATE OE OHIO VS. THE KEV. PATRICK F. QUIGLEY, 185 



Comments. 

On this I remark, that a state which represents power 
alone is one which confines itself to the preservation of 
order as to material things only. One that reflects an 
image of divine providence assumes also the role of what 
we call a paternal government. A Christian state, profess- 
ing obedience to a divinely established, infallible church, 
may with some grace undertake to do something more than 
to maintain order as to merely material things : it may 
with some grace undertake to compel citizens to fulfil cer- 
tain moral duties, on the plea that to do so will be for the 
general good. But a state which claims to be separated 
from all religious control as to state action, however it may 
be as to its right to reflect an image of the power of God, 
has confessedly no right to undertake to reflect an image 
of the providence of God. It has rejected the only charter 
which would give to it the right to rule as a father. If by 
its own deliberate act it chooses to lower itself to the rank 
of policeman, it must content itself with the exercise of 
police power. 

Police power in this sense does not mean simply that 
which keeps people from breaking each other's heads. In 
Greek polis means city, and originally city and state meant 
the same thing. Police power is the power to order those 
things which essentially pertain to the poUs, city or state, 
in its capacity as a civil society merely, that is, in material 
matters only. In the exercise of this power a state may 
forbid the adulteration of food ; check exportation or favor 
importation of products ; promote internal improvements ; 
provide libraries, halls, or means of instruction for the 
people, and all such things : but it must leave the people 
free — free to avail themselves of those advantages or not, 
as they choose. Fancy a law compelling people to visit art- 
galleries on Sundays ! The modern state may not attempt 
to make men moral by its own civil law, and it has rejected 



186 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 

the old guide as to how it might properly aid in enforcing 
the divine law, and declares there is now no state guide in 
such matters; wherefore those matters must be let alone, 
so far as the state is concerned. As to some of the powers 
above named, some of the later constitutional states may 
not have the right to exercise them : another example that 
the rights of any particular state, as to any particular mat- 
ter, are such as they happen to be, not as they possibly 
might be. 

The Holy Father has given us a description of two 
different kinds of states. We have no such state in this 
country as the one to which the Holy Father would con- 
cede the right he describes. The first thing we need to do 
is to get a clear understanding as to what kind of a state it 
is we have here, and in what relation it stands towards the 
the family, as well as towards the citizen. 



'3 HE STATE OF OHIO VS, THE BEV, PATRICK F. QUIGLEY. 187 



III. 

What is a State? 

To understand what a state is, we must begin with the 
family, because the family is older than the state, and to 
understand the family we must begin with the individual, 
because the individual is older than the family. 

The Individual. 

We know the origin of the individual. At least, here in 
Ohio, in the matter of civil and political rights, that origin 
is not an open question for us. All discussion on that point 
is officially closed for us, because our Declaration of Inde- 
pendence and our confirming constitutions officially estab- 
lish for us that man is a created being, endowed by the 
Creator with certain inalienable rights, among which are 
life, liberty, and the pursuit of happiness. 

The Family. 

Now, what is the family? It is a society, a perfect 
society, lawfully established, having members, organization, 
government, and a legitimate aim, end, or object to be 
attained. Does this society get its right to exist from the 
state ? Is it merely a society in the state, subject to state 
control ? No. The family is older than the state. It is 
the oldest of all human societies. It is a human society 
only in the sense that its members are human^ and its loca- 
tion human, that is, on earth: but the society itself is of 
divine institution ; it is not established by the act of the 
members, but by the act of God. That is the doctrine of all 



188 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

the old authorities. The latest notable assertion of it by 
an American authority I find in Prof. Thompson's " Divine 
Origin of Society," Stone Lectures, Princeton, 1891\in these 
words : 

" The family is not created by the voluntary act of 
those who live in this relationship. We are born into it 
by no choice or volition of our own. It was given us, not 
made by us. And even those who found a new family are 
rightly said to enter into the marriage relation, not to 
constitute it between themselves. It is something which 
already exists for them, with a well-defined character, 
before they enter it. They do not confer first as to what 
kind of a relation they will establish. They find that 
already instituted for them, not only or mainly by the 
positive law of the land or the canons of the church, but by 
the creative power of God, and thus established in the very 
nature of things" (p. 24). 

The Professor speaks further of the family as follows : 

" The family is the oldest of worshipping societies, and 
the priesthood of the father is the oldest of priesthoods. 
No other priest has the right to encroach upon his pre- 
rogatives. . . . As the creation of God, who has guarded its 
existence, avenged every wrong done to it, punished its sins 
and rewarded its faithfulness, it is as truly a part of the 
supernatural order of human life as is the church itself" 
(pp. 83, 84). 

The family is not merely two separate, independent per- 
sons existing in regard to each other only in a contractual 
relation, but is a divine union of two persons, whereby 
" they two shall be in one flesh ; wherefore they are no 
more two, but one flesh" (Matt. xix. 5, 6, Douay) ; or, as 
King James has it : " And they twain shall be one flesh ; 
wherefore they are no more twain, but one flesh." 

"Wherefore the father and mother as family are one ; 
and the children, as family, are known to the state only as 
an extension of the personality of the father ; wherefore the 
state, in dealing with the family, deals only with the father. 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 189 

and may not interfere with him in his government of him- 
self or his family ; for to the state his family and himself, 
as family, are one. 

The father, though man, is not the wife; the wife, 
though generically man, is not the father ; the child, 
though man, is neither the father nor the mother. They 
are man, yet family; one, yet three. In the sense that they 
are one, they are family, and the state may deal only with 
the father. In the sense that they are three, they are 
individuals, with individual human rights, some of which 
almost any state may note and protect, but other some of 
which only a certain kind of state, under certain circum- 
stances, may undertake to enforce. 

Before undertaking to consider under what circum- 
stances the state may interfere to protect certain particular 
rights, let us first consider under what circumstances the 
state may interfere at all. 

In human relations the individual comes first ; then the 
family, then the church, then the state. 

The rights of man are first as an individual, next as 
member of a family, next as member of the church, next as 
member of the state. Under God, the individual man con- 
trols himself; the family is controlled by the head of it; the 
state by the effective majority in it. 

The individual man may properly control his own ac- 
tions, so far as he . shapes them in harmony with the 
purpose of his being. 

The head of the family may control the family in the 
same way. The effective majority may control the state in 
the same way. 

The purpose of the being of the individual man is to 
reach heaven. The purpose of the family is mutual love 
and affection, and the multiplication and development of 
the species. The purpose of the state is primarily to pre- 
serve order in society. 

The individual man, as individual, has two natures : the 
material and the spiritual. As to action affecting only 



190 x^KE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

material matters, lie is subject to the state. As to action 
affecting spiritual matters, he is bound to observe the 
moral law. 

The members of the family have their individual na- 
tures and their individual rights ; but there are three par- 
ties in the family — the father, the wife, and the children. 
Each party in the family has his rights, but they have not 
all the same rights. 

The head of the family, in governing it, must respect 
the rights of the other members. 

The members of the state have their individual natures 
and their individual rights ; but while they have the same 
nature, they have not all the same rights. There are 
individual rights, family rights, and civil rights ; and these 
rights are sometimes wholly material, sometimes wholly 
spiritual, and sometimes partly material and partly spiri- 
tual. X 

The effective majority, in governing the state, must re- 
spect all the rights of all the members ; but to what extent 
it may enforce the realization of those rights depends upon 
the nature, power, purpose, and authority of the state, and 
the relation it holds to those members with regard to those 
rights. 

Now, all states are not of the same nature, nor do they 
all hold the same relation to their citizens ; wherefore they 
have not all the same purpose, power, or authority. 

The Church. 

I have spoken of the family being before the state ; but 
there was something else besides the family that was be- 
fore the state, viz., the church. 

I am not going to use the term church here as meaning 
any particular spiritual society, but as meaning that aggre- 
gation of rules of moral conduct which men agree must be 
observed. In the beginning there was in this sense only 
one church — the rules of the natural law. The moment 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 191 

God began to give special commandments to men there 
came also the positive law, and still there was but one 
church for a while. But soon many repudiated the positive 
law, and began to set up false gods, and then there began 
to be different churches ; as with the Cushites or Cuthites, 
first founders of civil as opposed to patriarchal states. 

Origin of States. 

About this time also states began to be organized, as 
just noted. The first states, outside the patriarchal fam- 
ilies, were simply cities or fortified places. Now, the mo- 
ment states came into operation they existed in a certain 
relation with regard to the rights of the people, and there- 
fore with regard to the church or churches of the people, or 
such church or churches as the state recognized or estab- 
lished. 

Among those people who acknowledged the natural and 
the revealed law, the state was the humble servant of the 
church ; that is to say, in those states the people used the 
civil power only for such purpose and in such way as they 
were advised by their spiritual directors was just and 
proper ; and the scope of the state, under such circum- 
stances, in enforcing moral obligations was very great. 

Those decisions, being given in accordance with ac- 
cepted rules of natural and positive law, became recog- 
nized as established principles as to what might be done 
in the civil order, by the civil power, among a people who 
recognized certain principles of natural and positive law as 
being infallibly true, as expounded to them by a teacher 
which they accepted as infallible ; and therefore it followed 
that in such a state it was not questioned that the state, so 
advised and directed, might properly undertake to control 
all action on the part of its citizens, even to the perform- 
ance of religious duties, and punish for non-performance. 
That was a government where there was a real union of 
church and state. 



192 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

That was a religious state. If tlie religion professed 
was the Christian religion, then it was a Christian state. A 
state is not a Christian state simply because there are a 
great many Christians in it. The state is Christian, pagan, 
or infidel only when it officially so declares itself or by its 
official action practically proves itself to be so. 

The Pagan State. 

The first states were undoubtedly religious states. 
Soon, however, men began to disregard the laws of God, 
began to reject revelation, to abandon the worship of the 
true God, and to worship false gods and various idols. 
Then separation came, and the new men went out and 
built new cities, setting up new governments therein, and 
thus arose the pagan states. 

Those pagan states had so-called gods and so-called re- 
ligions, but the rulers of those states did not govern on the 
theory of a union of church and state, but on the theory and 
practice of absorjjtion of the church by the state and the 
entire supremacy of the state in all things. In such states 
there was practically no question as to what were the rights 
of the state, there being no recognition of the existence of 
any rights except those of the state. Sparta was such a 
state, and it naturally declared and easily enforced the 
doctrine that there were no individual or family rights ; 
that the child belonged to the state, and might be destroyed 
or educated, as state policy required ; but our great Ameri- 
can commentator. Chancellor Kent, says : " This was upon 
a principle totally inadmissible to the modern civilized 
world." (Lect. xxv.) 

Oriental States. 

There were the various states of the Orient, with their 
various so-called religions, in which the master was some- 
times the state, sometimes the church, sometimes both. 



THE STATE OP OHIO VS. THE EEV. PATRICK F. QUIGLEY. 193 

witli the rights of the state, as to the people, varying ac« 
cording as those relative conditions varied. 

The Christian State. 

Later came the Christian states in Europe, where the 
relation of the state to the church was constantly varying 
according to the temper of monarch or people, the author- 
ity of the church being sometimes fully recognized, as in 
the capitularies of Charlemagne, sometimes almost wholly 
rejected, sometimes partially recognized by concordats, 
with the right of the state varying according to those 
circumstances ; more rights of the church being recognized 
sometimes in states which ignored its divine origin than in 
those which proclaimed it, and therefore the rights of the 
state, in such infidel countries, being sometimes more lim- 
ited in certain matters than in the avowedly Christian 
countries. 

Then there were the so-called Schismatic states, where 
the head of the state was also head of the church, as in 
Russia, where the right of the state is what the ruler 
pleases. 

Other States. 

There were other states classed as heretical, infidel, ag- 
nostic, etc., where the right of the state contracted as the 
liberty or license of the citizen enlarged. 

The pagan states were not in a way godless. They 
acknowledged many gods — a multitude of gods. But in 
modern times, as in the case of France at one time, there 
came the distinctly godless state, the one which denies all 
gods and any God ; and all moral law, denying the exist- 
ence even of the natural law, basing everything on a so-called 
social contract. Of course, in such a state, judged by its 
own canons or by its so-called constitution, there is no 
limit to state authority, there being no natural rights. 
Such a state differs from an oriental despotism in the fact 



194 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

tliat in tlie oriental depotism the will of one man is tlie 
only law. In such occidental despotism the will of the 
majority is the only law. The minority is larger in one 
case than in the other, but it is equally enslaved in both. 

Distinctions. 

When we read in a book a declaration that a state has, 
or has not, such or such a right, if we want to understand 
what is meant, we must consider who the author was, when 
he wrote, what his belief was as to natural rights, and what 
kind of a state he was writing about. 

We see that the phrase " rights of the state " has two 
broadly different meanings : 

1. Eights of the state, in a state organized as it should 
be, — organized in such a way that it may reflect an image 
both of the power and of the providence of God ; a state 
which may not only preserve an outward show of order, 
but assist in promoting an inner development of virtue ; a 
state which may not only provide for the temporal welfare 
of its people, but may also operate to assist in leading 
them to the life eternal. That would be a perfect state, 
possible only among people having and believing in a per- 
fect, infallible-teaching church. 

2. Rights of the state, where the effective majority in 
the state refuse to be guided in their state action by any 
organized spiritual society. 

The latter is where there is what is called 

Separation of Church and State, 

Where the effective majority in a state has a religious, 
belief which controls their moral conduct, while there may 
be a nominal separation of church and state, there is not a 
real separation ; because so far as the effective majority is 
affected in its action as to state matters by its recognition 
of a moral code, in so far their church does direct and con- 
trol the policy of the state. 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY, 195 



IV. 

The Ohio State. 

The state of Ohio is a different kind of state from any 
I have described. It is not a Christian state. It does not 
declare that the Christian religion is the religion of the 
state. Neither is it an infidel, schismatic, pagan, or agnostic 
state. Much less is it like the France of 89 — a godless 
state. The state of Ohio is a religious state. It has a re- 
ligion officially adopted and declared to be the religion of 
the state. It is not a state religion, because not a religion 
established by the state. It is a religion which begins by 
declaring its belief in the existence of an almighty and 
eternal God, creator of man, and fountain source of all his 
rights, individual, social, civil, and political. It recognizes 
the ever-continuing providence of God, and appeals to Him 
for aid in moments of danger, and gives thanks to Him on 
occasions of victory. For a general declaration of faith, it 
acknowledges the paramount authority of, and pledges the 
most loyal obedience to, every manifestation of His divine 
will, which is found in the great body of the natural law. 



196 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 



Eights op the State. 

When we ask what are the rights of a state, we in effect 
ask how far has it the right to limit liberty of action by its 
people. When we ask what are the rights of the people, we 
in effect ask how far may they go in liberty of action before 
they come under state control. Our people should be care- 
ful about exalting the state too much, because the more 
they enlarge the power of the state the more they restrict 
the liberty of the people. 

In a state based on natural law the citizen may have 
liberty of action to the extent of properly enjoying all his 
natural rights. In a state based on natural law the state 
must stop whenever it meets with a natural right of a citi- 
zen. In other words, state rights begin where natural rights 
end. This limitation would be vague were it not that we 
have a means of measuring how far natural rights may ex- 
tend, namely, right reason in construing natural law. It is 
true, men's minds differ as to what right reason declares, 
and therein there is trouble. Under • the old theory the 
church was recognized as the interpreter of the natural law, 
and the limit of state right was definitely declared by that 
authority whenever doubts arose. In modern times there 
has been a great revolt against that authority. What men 
have gained is, that each one is now his own interpreter. 
What they have lost is that they often find difficulty in get- 
ting others to accept their interpretations. 

All is now confusion, and therefore it is that the Holy 
Father says that a state organized on such a basis has not 
in itself sufficient strength to insure public security and the 
quiet permanence of order. 



THE STATE OF OHIO VS. THE REV. PATRICK E. QUIGLEY. 197 

The trouble is, we have adopted a fundamental law, and 
yet have rejected the foxmerly accepted authoritative con- 
struction of it. The natural law is the basis of all our leg- 
islation, yet we have rejected the old means for definitely 
ascertaining in each particular case what the force of that 
law really is. If we have provided no other means in its 
place, then it is as if we had adopted our constitution and 
left each one to construe it after his own fashion. 

It is true that in our constitution we did recite a certain 
number of rights as guaranteed by that natural law, but to 
all the others we simply declared that they were retained 
by the people, without any particular definition as to what 
they were. 

Who Shall Decide? 

Now what is to be done in such a case ? Who shall 
decide for us what is permitted under the natural law? 
The majority ? How may any mere majority of men, most 
of them unlearned in any law, most of them not very anx- 
ious about anybody's rights, even their own, so long as they 
get what they happen to want at the moment, — how may any 
such body of men undertake to require their fellow-men to 
submit to what this majority chooses to say is its under- 
standing of what is permitted under natural law? 

Of course their saying what is perm.itted to them to do, 
does not make it so. And yet we are bound to act justly 
in legislation. We are bound to respect principles. A 
man who takes all he can get, right or wrong, is, we say, an 
unprincipled man, and we look upon him as unfit to live. 

A state which takes all it can get, right or wrong, is 
equally unprincipled, equally unfit to live. 

How, then, are we to proceed ? How shall we be able 
to know the limit of state interference? How shall we 
ascertain, in any particular case, whether the immunity 
claimed in any particular individual is guaranteed to him 
by the natural law, the fundamental law of the land ? 



198 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 



Power of the Courts. 

I can see a means by which we can get at this in a rea- 
sonably satisfactory way, if we will only make use of it. 

It is admitted that the principles of the natural law are 
ascertainable by human reason alone. Majorities in legis- 
latures are not supposed, in practice, to be governed by 
reason alone, therefore we may not look to the Legislature 
for protection in this matter. 

But we have institutions, which even in practice are 
supposed to be governed by reason alone, and those are 
our courts of justice. If the judges on the bench, men of 
trained intellects, strong reasoning powers, aided by the 
researches of their brother members of the profession, 
will seriously undertake to discover just what rights do fall 
under the head of reserved natural rights, it is not per- 
mitted to doubt that they may by right reason alone fairly 
understand what these rights are, and, those rights once 
ascertained, an application of the remedy is easy. 

And it is their duty to do so, because it is their duty to 
construe the constitution, and this natural law is a part of 
our constitution, and they cannot in conscience refuse to 
try to understand it and apply it. 

Entertaining these views, I claim that it is in the regular 
course of procedure for me to undertake to show that the 
law in question here is in violation of natural rights, and 
must therefore be declared unconstitutional, null and void. 



The Courts the Proper Place for Eelief. 

We were told below that if this law was unjust, our 
remedy was to try to repeal it. I deny that. If this law 
is unjust it is because it is in violation of natural rights, 
and therefore unconstitutional, null and void. We were 
told below that even if the law were unjust, that was no 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 199 

excuse for refusing to obey it. I deny that. No one can 
be bound to obey a law which violates natural rights. The 
great St. Thomas declared more than six hundred years 
ago that such written statutes were not rightly called laws, 
but rather '* corruptions of law." (St. Thomas Aquinas, 
vol. iii. p. 500, opera Om. Vives, Paris, 1772.) 

He further said : " If the written law contain anything 
contrary to natural law, it is unjust, and has no binding 
force." No. "When the natural rights of the people of 
Ohio are outraged, the courts are proper places in which 
to seek relief. When the courts of Ohio refuse to protect 
natural rights, in vain will the poor citizen appeal else- 
where for relief. Still believing that the courts of this 
state are the proper places to seek relief, I come now to 
that part of my argument where I shall try to show 
some specific reasons in support of the proposition, that the 
Legislature had no power to pass this law. 



^ 



200 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

VI. 

Compulsory Education is Paternalism. 

I have tried to show that the power of the state may 
be dual in its effects : temporal and spiritual, policial and 
paternal; reflecting an image of the power of God, and 
reflecting an image of the providence of God. I now claim 
that a state which undertakes to act the part of providence 
for a people must believe itself to be enlightened in judg- 
ment by divine illumination, and directed by infallible 
guidance : the state of Ohio rejects such an assumption, 
therefore must reject paternalism. 

Compulsory education aims to form the character of the 
doming generation. Herbert Spencer declares in vol. iv., 
" Data of Ethics," that such action is beyond the power of 
the state ; and in support of that proposition enters, as he 
himself says, into a systematic discussion of the view thus 
proposed. (See Pop. Sc. Monthly, Sept. '91, p. 639.) 

He says in part that in the earlier warrior states, where 
war was the normal condition, men were not citizens, but 
soldiers ; they belonged not to themselves, but to the state, 
for the salvation of its life and their own lives ; that in 
such states at such times the state might properly control 
the education of youth to make them soldiers ; that because 
of that the idea crept in that the state might control for 
other purposes. But that in later days, where not war but 
sustentation is the chief business of life, the whole relation 
is changed : men do not exist for the state, but the state 
exists for men. Men, therefore, must not be moulded i.ow 
by the state for its use, but they must mould the state for 
their uses. 

As to the state attempting to form character, he says 
the state is incompetent to know what character will be 
best for future emergencies, or to impose it if it did know, 
therefore may not undertake to form or impose. 



THE STATE OF OHIO VS, THE EEV. PATEICK F, QUIGLEY. 201 



TIL 

Compulsory Education Violates — 

1. Paternal Bights ; 

2. Conscience Rights ; 

3. Personal Liberty Rights, 

1. R Violates Paternal Rights. 

The child in its tender years belongs most particularly 
to the family ; and it is by natural right subject to the con- 
trol of the family society. It is the business of the family 
to bring forth, nurture, develop, and finally present good 
citizens to the state. The state has no right to the child 
until it reaches the age of citizenship ; it is only at that 
age that it becomes emancipated from paternal control, and 
as a citizen becomes subject to a certain control by the 
state. The family was a little kingdom established on the 
soil before the state was formed. It was a divine institu- 
tion. It had its own organization, its own laws, its own 
government — all before the state came into existence. The 
state did not come to destroy the family, nor to invade it, 
nor to interfere with it, but to respect and defend it. The 
state never received any authority or permission to interfere 
in its management. The family is the sacred source of life, 
out of which comes all that goes to make the state. For 
the state to destroy the family is to destroy its own source 
of life. For the state to take control of the education of 
the child is to furnish it also with books, clothes, and food. 
This is to make the child independent of its parents. This 
is to destroy the family relation ; but the family relation is 
of divine institution, and the state has no right to destroy 
it. This point was more fully discussed in my argument 



202 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

in tlie court below, and to wliicli I beg to now especially 
refer. 

2. Compulsory Education Violates Bights of Conscience. 

A genuinely Christian state may witli propriety under- 
take to reflect an image of tlie providence of God as w^ell 
as of His power, because it recognizes God, His law and 
His churcli ; but the principal part of the reason is because 
it recognizes His church ; and that part is principal because 
through this church the state may infallibly know the law 
of God, and may therefore try to execute it, if there be 
reason for so doing ; and there is reason for so doing, for 
thereby the good of the people will be better subserved. 
The ultimate reason, then, for that use of power is the good 
of the people, for that is the sole object of the existence of 
the state ; and this is so because the people belong to God, 
and He wishes them to be properly cared for in material 
matters, and therefore authorizes the existence of the state 
for that purpose. 

Now, very properly, to a state which knowingly and 
willingly rejects God, His law, and his church there can- 
not be conceded any right to try to care for God's people, 
and therefore no right to govern, or even to exist. By 
God's people I mean all the people. All people on earth 
are God's people. 

But a state whicli in good faith accepts God and His 
law, so far as it is able to see the law, may apply the law 
so far as it understands it, and so far as in right reason it 
can, together with its people, agree as to what the law is. 

Where there exists a people needing a state government, 
and having one which professes to be in good faith in not 
being able to recognize anything beyond the natural law, 
and professes to honestly recognize that law ; and the 
people are satisfied with that state government, finding it 
apparently trying to act according to its professions, — we 
must recognize that such a state must be permitted to 
exercise the functions of government, and to use the civil 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 203 

power for the preservation of order among its people, and 
also in all material matters to legislate for the general 
good of those people, so far as the same may be done com- 
patibly with the preservation of all their natural rights ; 
but we may extend the recognition only because of the 
necessities of the case, and may acknowledge rights and 
powers in that state only to the extent that they can be 
derived through natural law, and only till the state may 
acquire a better title to the use of those powers, and until 
it may also acquire a title to the use of other and higher 
powers, which it is desirable a state should also have. 
That is a natural law state where nothing but the natural 
law is recognized by the state or by any of its people. 

"Where a state is organized on the basis of the natural 
law alone, but among a people who generally, as individu- 
als, accept revelation in addition to the natural law, each 
one accepting also what he believes to be the church of 
God, yet because they differ and cannot agree generally as 
to which church is the true one, organizing their state upon 
the basis that no particular church shall be declared to be 
the only one to be respected and protected, — such a state 
exists in a very peculiar and delicate relation towards those 
of its people who accept revelation and profess belief in a 
certain Church ; and to have any hope of getting along at 
all, it must accord the fullest recognition of the individual 
right (so far as the state is concerned) of each citizen to 
follow his own ideas in the matter of revelation and relig- 
ious matters generally, so long of course as the naturallaw 
is not violated ; in other words, it must declare that rights 
of conscience shall be sacred and inviolable ; and it must 
not only declare this, but it must honestly maintain its 
declaration, or it loses its right to exist. 

Now such was the situation of things when the state of 
Ohio was organized, and because of that the state of Ohio 
was organized on the condition, among others, that rights 
of conscience would be respected. The moment the state 
of Ohio violates that condition, it loses its title to any 



204 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

longer exist as a state, under the present constitution. 
Unwarranted legislation is only an attempt at violation. 
Complete violation is only when the act is sanctioned by 
the courts. In this country and under our system the final 
death- stroke to our liberties can come only from the 
courts. 

It is not through mere generosity that the citizens of 
Ohio may now acknowledge rights of conscience in a 
minority of its citizens. It is a part of the constitution of 
the state that these rights already existed among men as 
natural rights before the state was organized, and that 
there should be no power in the new state to interfere with 
them ; therefore a refusal to respect them would be the 
destruction of the constitution, a violation of the compact, 
a disruption of the state organization, an end of the whole 
scheme of state existence. If the majority should never- 
theless try to continue the government in defiance of those 
conscience rights, it would not be legitimate government, 
but a usurpation, a t^^ranny, pure and simple. 

The state of Ohio is established on the proposition that 
man is a created being, having a moral obligation toward 
his Creator. The parent is under the moral obligation of 
educating his child unto a knowledge of his Creator, and 
his moral obligations towards Him. 

The parent cannot do this unless he have the child 
under his own control, or under the control of persons 
specially skilled in such matters, chosen by him. The state 
may establish and equip public schools and offer an edu- 
cation there, but it must rest with the parent to say whether 
he can in conscience feel that he is doing his duty to his 
child in sending him to those schools. 

The state of Ohio has specially declared that the rights 
of conscience are natural rights, which must be held sacred 
and inviolable. The court must take judicial notice of the 
fact that there are some ten million people in this country 
who claim and prove that they cannot in conscience send 
their children to those public schools which the state has, 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 205 

SO far, established. The official report of the public census 
shows there are about that many Catholics in this coui^ry ; 
and the public legislation of that church declares that its 
children cannot in conscience attend the public schools as 
at present constituted. 

Besides, the evidence in this case shows that such is the 
fact with regard to the children, as to whom reports Avere 
demanded in this case, therefore it is a violation of the 
rights of conscience for the state to undertake to compel 
those children to attend these schools. And that is what the 
state here undertakes to do ; for attendance at the schools 
is made the primary obligation, to be avoided only by com- 
plying with certain onerous conditions, which the state has 
no right to impose. 

This right of conscience is a natural right, under natural 
law possessed by all persons by the mere fact of birth, 
whereby the person is brought into the natural order. 

Avoiding condemned propositions as to natural and 
supernatural orders, I will say that when the child is by 
baptism brought into the supernatural order it is formally 
and materially made a member of a spiritual. society, the 
church, and thereby acquires a 'supernatural right to such 
education as, by the laws of that ecclesiastical society, it is 
required to have ; and that is also a right of conscience, 
which the state has declared shall be inviolable. For a 
state based upon the principle of religious liberty to under- 
take to deny this right is to deny its own principles, and 
actually persecute that church. 

A state pledged to respect rights of conscience cannot 
justly compel parents to send their children to a school of 
which the parents cannot in conscience approve. 

Now, a conscientious objection to the character of the 
school closes it against the child, just as much as closing it 
in any other way could do ; therefore, if the state seek to 
justify compulsory education on the ground that the duty 
exists, and that no excuse of inability may be offered, for 
that the state has provided a school, the state must show. 



206 THE STATE OF OHIO VS. THE REY. PATRICK F. QUIGLEY. 

not only that it has provided a school, but that the school so 
provided is such an one as the parents may in conscience 
use. It is a notorious fact that the schools the state has so 
far provided are not such as can in conscience be used by 
a large part of the people ; therefore, at least as to those 
people, the state may not yet enact compulsory education 
laws. 

It is a part of the religious belief of those people that 
religious instruction must not be separated from secular 
instruction ; there is nothing in that belief contrary to 
natural law ; therefore a denial to them of that right is a 
denial to them of their religious liberty ; it is a persecution 
of their church, and a persecution of them as members of 
that church ; it is an effort to compel them to surrender 
one of the most important parts of their religious belief, 
and to accept in lieu thereof the views which some other 
people entertain on that point. This is an interference 
with rights of conscience and a denial of religious liberty, 
and- certainly any law which does that in Ohio is unconsti- 
tutional, null and void. To some the truth of this propo- 
sition will be more evident if we imagiue the relative 
conditions reversed. If the present minority were in the 
majority, and should undertake to pass a law in Ohio forc- 
ing their view^s in these matters upon those who are now in 
the majority, the unlawfulness of the act would be start- 
lingly apparent. 

It will not do to say that the state does not compel at- 
tendance in public schools. It says the child shall attend 
the public school, unless it attend some private or paro- 
chial school. But the private schools will not receive 
children without pay, and the parent may not be able or 
willing to pay, and the same may be the case with the paro- 
chial s chools ; therefore the law does virtually compel at- 
tendance in the public schools. 

If it be true to say that this is no violation of the rights 
of the parent, because the obligation may be avoided by 
the parent providing a private school, wherein the same 



TnE STATE OF OHIO VS. THE REV. PATEICK F. QUIGLEY. 207 

branches shall be taught as in the public school, then it 
would also be true to say that it would be no violation of 
religious liberty to require each citizen to attend a state 
church, unless he provided at his own expense and attended 
a private church, in which the same doctrines were taught 
as in the state church. 

It will not do to say that the state is not bound to fur- 
nish a public school, except to paupers — that it may compel 
parents to educate their children even at their own expense, 
because the Ohio constitution declares that taxation shall 
be uniform : the state has already exhausted its taxing 
powers for education when it has collected the general 
school tax ; that tax has been paid by the people described, 
the same as it has been paid by others. The state may not 
compel them to build, equip, and maintain private schools 
of their own in addition to the public schools they have on 
compulsion helped to build, equip, and maintain, but which 
they cannot use. 

Every one can see that for the state to undertake to do 
that would be to levy a double tax on those people, and the 
constitution says that shall not be done. 

3. Compulsory Education Violates Personal Liberty. 

The state of Ohio is founded upon another proposition, 
— that its citizens have an inalienable right of seeking and 
obtaining their own happiness and safety. 

It is a fashion with some people, when they meet an as- 
sertion of this kind, which incommodes them, to pass it off 
with the remark that it is only a glittering generality. But 
this proposition is contained in the very first section of our 
Bill of Eights. All the declarations there are generalities, 
and necessarily so. The founders of the state were dealing 
with general principles, and necessarily announced them as 
generalities. To glitter is to gleam, to shine, to sparkle, 
to flash ; and that declaration of Liberty in the pursuit of 
happiness gleams and shines and sparkles in the diadem of 
our state, as one of the brightest jewels in the cluster. 



208 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

It flashes out to the world the declaration that there 
shall be no paternalism here, no state power dictating to 
us what we shall do in order to be happy, nor with what 
state-provided happiness we shall be content ; but that here 
each one shall be free to seek his own happiness in his own 
way, as to him may seem best, independent of all state 
control. 

I do not object to paternalism in government, if you can 
get genuine, true paternalism. No one objects to that. 
But it is so difficult to get it ; there is so much abuse at- 
tendant upon all attempts in that direction, that the found- 
ers of our state declared that no attempt should be made to 
enforce it here, but that each man should have the inalien- 
able right to seek and obtain his own happiness in his own 
way, and according to his own desire. Therefore this con- 
stitutional provision distinctly forbids all attempts by the 
state to undertake to provide for the happiness and general 
welfare of the coming generation by undertaking to form 
its character by any system of compulsory education, or 
other compulsion. 



THE STATE OF OHIO VS» THE REV. PATRICK F. QUIGLEY. 209 



YIII. 

No GOOD KeASON SHOWN FOR THE LaW. 

1. Advocates of the law say that the child has a right 
to an education, and if the father will not do his duty, it is 
the duty of the state to protect and enforce that right by 
general law. 

That Proposition is Full of Fallacies. 

a. It is error to say that every child has a right to such 
an education as the state chooses to prescribe. 

5. Just what right any particular child may have to any 
particular education at any particular time is something 
that can be determined only by taking all the circumstances 
of that particular case into consideration. 

c. There may be a great difference between protecting a 
right and enforcing it. 

d. The right which a child has to an education is not 
one which our state has either the duty, the right, or the 
power to enforce by general law. 

Whatever right the child has in the matter of education 
is only a natural right, a right under the law of nature, a 
right which it has by the very nature of things, by reason 
of its place in the world, and the necessity of its being 
made able to accomplish the object of its existence. The 
child has two natures — physical and spiritual. Whatever 
rights of educatibn it has relates to both of these natures. 
As these natures are inseparable during life, naturally the 
education of both must be inseparable also. But the state 
is powerless in the matter of spiritual education, therefore 
it is powerless as to both. Besides, whatever right the 



210 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

child has in the matter is simply a right from the nature of 
things, and therefore from the nature of its surroundings 
and state in life, and "the state in life the parent thinks it 
best for the child to aim for. The state may not interfere 
in these things by general law. Each child is a nature to 
itself, with mind, powers, aspirations, and dispositions pecu- 
liar to itself. Onlj the parents can know what they are, 
and only by having a child constantly with them; and there- 
fore to the parents must be left, so far as the state is con- 
cerned, the determining of what education the child should 
have. The obligation of the parent to educate is a moral 
obligation only, and the right of the child only a moral 
right ; and the state has neither the duty, nor the right, nor 
the power to enforce that moral obligation by genera^ law. 

In trying to protect the right of the child the state must 
not infringe on the right of the parent. They say a child 
has a right to an education. I ask, to what kind of an edu- 
cation ? They say to such an education as v»dll enable him 
to make his way in life. What is his way in life? Has 
each child, when it comes into the world, a way of life 
marked out for it, with a right to be educated sufficiently to 
follow it ? If so, how may we ascertain what it is ? They 
say, one thing at least is certain, that it is the parent's duty 
to give his child such an education as will enable him to 
hold at least the position in which he is born ; that the 
parent in bringing him into that condition is bound to fur- 
nish him with the means of continuing to hold it. Is that 
so ? If it be, then if the parent neglect, it is the duty of 
the state to do it. 

Then if the father is president when his child is born, 
the state must see that the child is fitted to hold the place 
in life held by the father. This would give us the caste 
system of India. Then they say, at least the father is bound 
to give his child sufficient education to enable him to reach 
the average station in life to which the child may reasonably 
aspire. 

How vague this is! Some of the poorest and appar- 



THE STATE OF OHIO VS. THE REV. PATRICK E. QUIGLEY. 211 

entlj most -uiiintellectual boys become the greatest men. 
The greatest philosopher the world has ever known was 
called in his youth " the dumb Sicilian ox." How can the 
state know to what station any boy may reasonably aspire ? 
All these theories are too indefinite, vague, and unsubstan- 
tial for a basis for general state compulsory education. 
The only reasonable solution of the question is to furnish 
ample means for education free to all. Then each will get 
the education he deserves ; sooner or later he will get it. 
That is the only practical solution of the difficulty so far as 
general law is concerned. 

Free education is communism. Free teaching draws 
after it free books, free clothes, free food, free time. All 
this is going very far with the communists. But some- 
where we must call a halt, or surrender everything to com- 
munism. We had better stop right here on this question 
of personal liberty as involved in compulsory education. 
When we admitted free schools in the beginning none of us 
thought we would be drawn to free books, free clothes, and 
free food. But it has come to that, and we do not object as 
long as that charity is confined to charitable objects, and 
they are left free to become paupers or not, as they choose ; 
but if we admit a right in the communists to take the child 
out of the family and control it, they will next ask for the 
wife. They are asking for her now — that love also shall be 
free. Grant the first principle of communism as to per- 
sonal liberty, and all the rest will follow. What that rest 
is need not be told to those who know something of history. 
Those who do not understand, may find what I mean by 
consulting the first paragraph of chapter xxv. of Cardinal 
Gibbons' " Christian Heritage." 

2. Advocates of the law say the state may compel uni- 
versal education, because it is for the general welfare. • 

There is a fallacy in this proposition also. They who 
propose it do so with the understanding that if that propo- 
sition is admitted, this law is justified. But that is not so. 
One may admit that proposition, yet not be forced at all to 



212 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

the conclusion claimed. This law undertakes to compel 
something which more than ten millions of people in this 
country say is not education at all, but something worse 
than no education. Before the people of the state may 
properly talk of compulsory education, they must agree as 
to what education is ; and if they cannot agree, they must 
provide schools in which each one can get what he is 
willing to admit is education. It is only after that stage 
is reached, when means have been provided at public 
expense for each one to get what he acknowledges is edu- 
cation, that the majority may, if at all, say to the minority : 
'* Now there is what you say is needed. You admit that it 
is your duty to give it to your children. Now you must 
give it." But when the state provides such schools for its 
people, there will be no need of compulsory laws to force 
parents to send their children there. 

3. Advocates of the law say that the state may enforce 
education, because necessary for self-preservation. 

Objections : a. A state may not resort to the extreme 
measure of depriving its citizens of their natural rights, 
even for self-preservation, unless, first, that such measures 
are necessary ; second, that they be effective. 

K To justify this law, it must be clearly evident that 
the education proposed to be secured by it is of such a 
nature that for the state to dispense with it would imperil 
its existence. 

First. This law bases its right to exist on the claim that 
the state needs good citizens ; that this law will produce 
them ; therefore, etc. Not abandoning the doctrine that 
a state has no right to try to form the character of the 
coming generation of citizens, it is evident that this law is 
impotent to produce the effect proposed. This law pro- 
poses to develop only the intellectual faculties of the future 
citizen. Even if it could certainly succeed in that respect, 
that would not advance the matter at all. One is not 
necessarily any better citizen because he may be proficient 
in geography,, grammar, and arithmetic. It is something 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 213 

entirely different from that wliich goes to make good citizen- 
ship. Morality is the principal thing needed for good 
citizenship, and the schools into which this law seeks to 
force children are forbidden to teach morality ; therefore 
this law does not even go in the direction of producing 
good citizens. 

Second. But even granting that attendance in the 
schools in question does have a tendency to secure the 
safety of the state, is this law necessary for the safety of 
the state? To claim that is to claim that without it there 
would not be sufficient attendance in such schools to insure 
the safety of the state. 

That is a very bad admission to make as to those 
schools, or else as to the mass of Ohio people. It admits 
either that the schools are so bad that the people will not 
patronize them or that the people are so bad that the 
schools cannot save them. 

If it be true that with a complete system of free schools 
spread all over the state, accessil3le to all, and free to all, 
yet that there is such a hatred of education among the 
people of Ohio that the mass of the people would not 
educate their children except by compulsion, then nothing 
will save the state of Ohio from destruction. Mind, just 
now it is not a question as to whether universal education 
would be a general good. The proposition is, that com- 
pulsory education is necessary to save the state from 
destruction. How absurd that proposition is! With the 
free and intelligent people of the state of Ohio (all pro- 
duced without compulsory educational laws), with a full 
system of free schools, and with perfect freedom of educa- 
tion, the number of children that would be left uneducated 
by some means would be, as compared with the whole, 
almost infinitesimally small, and that small number would 
confessedly be of the lowest, vilest, most degraded, most 
abject class ; and yet the great well-to-do, energetic, in- 
dustrious, and thoroughly educated overwhelming majority 
of the next generation of Ohio citizens would be in danger 



214 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLBY. 

of having this little handful of ragged rascals rise up and 
destroy the state and absorb the liberties of all these gradu- 
ates of the public schools ! What preposterous nonsense 
to advance such a claim. 

Then the compulsory advocates raise the philanthropic 
cry: 

"These poor ignorant creatures, victims of sin and 
crime — will you do nothing to raise them from their forlorn 
condition?" 

Ah ! that is altogether another question — one that has 
nothing to do with the present contention. When properly 
presented, it will doubtless be properly considered. There 
is a power in the state for dealing with particular cases in 
such matters, through certain courts that have the care of 
orphaned or abandoned children; but it may be remarked 
that if the state may invade the family and punish the 
parent for neglect of duty, it must be because that neglect 
is a crime justifying the state in proceeding to the extreme 
measures of taking the child from the parents' care and 
placing it somewhere to receive that care and instruction 
which its needs require. But that raises the question 
whether it will be for the general good to take those victims 
of the criminal classes and force them into companionship 
with the children of the virtuous. One scabby sheep will 
infect a flock. This reformation of the vicious should not 
be mixed up with the education of the innocent, nor should 
parents in general be deprived of their rights because some 
parents abuse them. Because an evil exists and that some 
remedy should be provided, it does not follow that the 
first remedy proposed is necessarily the best and the only 
one that can be had. The old power of the chancery and 
orphan courts is sufficient for the special cases. 

This matter of undertaking to limit individual liberty 
for the benefit of the whole is the most delicate of all 
governmental, matters. It will not do to allow a few educa- 
tional enthusiasts to ride rough -shod over the whole 
community upon any hobby they choose to mount, on the 



THE STATE OF OHIO VS. THE REV. PATEICK F. QUIGLEY. 215 

plea that they are going to save the state thereby. The 
state may be ailing a little because of illiteracy, but the 
remedy proposed by the law is worse than the disease. 
It is the duty of the courts to watch all these schemes of 
legislation, and to throw them out one after another as soon 
as it is found that they are not in harmony with the consti- 
tution of the state. 



216 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 



IX. 

Authorities, 

I liave tried to show that this law is unconstitutional 
on three grounds — ^in that it violates, first, parental rights 
in education; second, individual rights of conscience; third, 
the special guarantee of personal liberty. 

In support of the proposition that under the natural 
law control of the education of the child is a parental right, 
which the state may not arrogate to itself, I refer now to 
some authorities. 

Leo XIII., Encyclical " Inscrutabili," April 21, 1878. 
Leo XIIL, Encyclical "De Erroribus Modernis," Dec. 

28, 1878. 
Leo XIIL, Encyclical " De Matrimonio Christiano," 

Eeb. 10, 1880. 
Leo XIIL, Encyclical "De Civitatum Constitutione 

Christiana," Nov. 1, 1885. 
Leo XIIL, Encyclical " De Libertate Humane," June 

20, 1888. 
Leo XIIL, Encyclical " Sapientise Christianae," January 

10,1890. 
Leo XIIL, Encyclical " De Conditione Opificum," May 

15, 1891. 
Taparelli, Natural Law, sections 724-1571, and note cxL, 
on Book YIL, with numerous other sections there re- 
ferred to. 
Meyer, Jur. Nat., Vol. L, p. 332 et seq. 
Bayma, Am. Cath. Qrly., Yol. XL, p. 17. 
Conway, "Kespective Eights in Education," 2d ed., 

Pustet, N. Y. 1890, pp. 9-60. 
Zallinger, Inst. Jur. Nat, 1786. 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 217 

Tarquini, Jus. Pub., p. 118. 

Tliebaud, Am. Catli. Qrly., Yol. IV., 431-11, 430. 
Ming, Am. Catli. Qrly., Yol. YIII., 577-716. 
Holaind, Ecc. Ew., September 1891. 
Corcoran, Am. Catli. Qrly., Yol. III., 342. 
Gilmary Shea, Am. Catli. Qrly., Yol. YIL; 195; IX., 713. 
Solimani, Tolomei, Liberatore, Tongiorgi, Cornoldi, 
Balmes, Donoso Cortes, De Lehen, De Margerie, On- 
claire, At, Yallet, Cli. Perrin, Moulart, Cbesnel, La 
Foret, Keller, Yan AVeddingen, Burquard, Kleutgen, 
passim. 
Gillet, Unpublished MS. '' L'Eglise," sections 2230 to 

2444 (a great work). 
Conde B. Pallen, '' Social Problem Solved," St. Louis, 

Herder, 1890. 
Brownson, XIX., 596; XL, 403; XII., 400, 498; XIIL, 
403. Matthews, "Citizen and State," Boston, Ellis, 
1889, pp. 3-23. 
Cathrein, On Education, Yol. II., sees. 484-497, of his 
"Moral Philosophie." He says the state has no right to 
the immediate provision or direction of the education of 
children ; that that is an exclusive right of the parents ; 
that the claim of the state to control education is an inva- 
sion of parental right ; that the state may not separate 
instruction from education, and then assume control of 
instruction ; that the state has no general right to enact 
general compulsory laws, though he admits that special 
cases of gross neglect may be specially dealt with. Cath- 
rein, in support of the proposition that there is a difference 
between perfecting a right and enforcing it, advances the 
illustration that while it is important to the state that men 
choose good wives, yet the state may not choose for them, 
so while it is important to the state that parents choose 
good schools, yet the state may not choose for them ; the 
liberty of choice must remain with the parent. Cathrein 
is in German, untranslated as yet. The above is not given 
as his language, but a summary of the effect of it. 



218 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 

Marshall, Am. Cath. Qrly., Yol. YII., 652. 

Brann, Am. Cath. Qrly., Vol. IX., 238. 

Wolff, Am. Cath. Qrly., Vol. II., 730. 

Chatard, Am, Cath. Qrly., Vol. II., 76. 

Mooney, Am. Cath. Qrly., Vol. X., 532. 

De Concilio, Am. Cath. Qrly., Vol. XIII., 270. 

O'Sullivan, Am. Cath. Qrly., Vol. XIV., 129. 

Young, Am. Cath. Qrly., Vol. XIV., 387. 

Jansen, De Facultate Docendi, says, in substance, that 
rulers have no right to direct in what manner their sub- 
jects shall be taught. (Thesis XXVII. , p. 128.) On this I 
remark nothing can be more necessary for human liberty 
than the acceptance of this proposition, because, if rulers 
may control teaching, they may perpetuate their rule ; by 
controlling teaching and text-books they may present any 
view they please of history, philosophy, political economy, 
and state authority : such a claim on the part of the state is 
incompatible with the continuance of liberty in the subject 
or citizen. In Thesis XXIX., page 131, he maintains that 
no satisfactory reason can be advanced in support of the 
claim of the state to control ins'truction. In Thesis 
XXXII. he upholds the proposition that the state has no 
right to interfere with the education of minor children who 
are yet under parental control. In Thesis XXXIIL, p. 
149, he further insists upon the parent's right of the edu- 
cation of the child being an exclusive right, with which 
the state may not interfere. In Thesis XXXVI. he main- 
tains that the claim of the state to interfere in the manage- 
ment of private schools must be denied, and in Thesis 
XXXVII. he maintains that the state has no right to com- 
pel parents to send their children to public schools. 

On this I remark, that it must not be said that the law 
in question here does not undertake to do that. It does 
make attendance on public schools the primary obligation. 
It adds a proviso, that attendance at private schools which 
adopt the curriculum of the state will be permitted ; but 



THE STATE OF OHIO VS, THE EEV. PATRICK F. QUIGLEY. 219 

such legislation asserts the right of supreme control, the 
right to cancel that proviso later, and leave the obligation 
absolute. 

Von Hammerstein, "De Ecclesia et Statu," Treviris, 
Dasbach & Keil, liber primus, p. 182, says in substance, 
that the right and duty of parents to educate their children 
is anterior to the right of the church or the state. He 
further says that "parents have likewise the right to 
exclude all other persons attempting to interfere in the 
education of their children against the parents' will." Yon 
Hammerstein, like Cathrein, speaks of an ultimate author- 
ity in the state to interfere in particular cases where parents 
completely fail to discharge their duty ; but that is not an 
admission of a right in the state to compel attendance in 
state schools, nor to interfere in the management of private 
schools. 

Costa-Eosetti, On State Rights in Education. 

Meyer, Jur. Nat., says that nature has imposed upon 
parents the most grave duty of educating their children ; 
that their duty is derived from the essential end of mar- 
riage ; that it comprises physical, intellectual, and moral 
education ; and that the proper discharge of this duty 
requires the combined, efficacious, daily, vigilant, and skil- 
ful efforts of both parents, not only for a few years, but for 
many years, and often, especially where the family is 
numerous, such efforts may cease only with old age (pp. 
333, 334). 

Schmalzgrueber, prince of canonists, speaking of matri- 
mony, says : One of the rights and duties of parents is the 
proper education of children in good morals, true religion, 
piety, and the arts. He adds : This is chiefly incumbent on 
the father as head of the family; after his death it passes 
to the mother. His words are : 

" Recta prolium educatio in probris moribus, vera relig- 
ione, pietate, et artibus ; quae, stante matrimonio principal- 
iter incumbit patri tanquam familise capiti; hoc soluto 



220 THE STATE OE OHIO VS. THE EEV. PATRICK E. QUIGLEY. 

transit ad matrem." Sclimalzgrueber, Jus. Ecclesiasticum 
Universum, tome 8, p. 145, par. 315, No. 4. (Ingolstat, 
1726.) 

Eeiffenstuel says : As long as the father lives, no guar- 
dian may be appointed for his children. Existente patre 
non datur liberis tutor. Jus. Can. Uni., vol. V., p. 539; cf. 
540. 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 221 



Summary. 

I claim that we have shown here that control of educa- 
tion is a parental right, founded on natural law ; that under 
the constitution of Ohio natural law is the supreme author- 
ity ; that this act of the Legislature is in violation of that 
natural law, and must not be obeyed, neither may the 
courts give judgment under it. 

On this point St. Thomas says : *'Lex scrip ta sicut non 
dat robur juri naturali, ita nee potest ejus robur minuere 
vel auferre, quia nee voluntas hominis potest immutare 
naturam. Et ideo si scriptura legis contineat aliquid con- 
tra jus naturale injusta est, nee habet vim obligandi. Ibi 
enim jus positivum locum habet, ubi quantum ad jus natu- 
rale nihil differt utrum sic vel aliter fiat, sicut supra habi- 
tum est. Et ideo nee tales scripturae leges dicuntur, sed 
potius legis corruptiones, ut supra dictum est. Et ideo 
secundum eas non est judicandum. Opera Om. vol. iii, p. 
500, ut supra." Or, to put it in the language of the court^: 

"As written law does not give binding force to the 
natural law, so it cannot diminish or take away its binding 
force, because the will of man cannot change nature. And, 
therefore, if written law contain anything contrary to the 
natural law, it is unjust, and has no binding force. Positive 
law has place only (so far as natural law is concerned) 
where it makes no difference whether a thing be one way 
or the other. Therefore such written laws are not called 
la\\s, but rather corruptions of law, as we have said above. 
And therefore judgment must not be pronounced according 
to such written laws." 

I trust therefore that your Honors will hold that the act 
in question is irreconcilably repugnant to the guaranties of 
personal liberty contained in the constitution of the state of 
Ohio, and therefore not such as may be lawfully enforced. 



223 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

Mr. HuRD, for defendant, spoke as follows : 
On the 15th day of April, 1889, the general assembly 
of this state passed a law entitled "An act to compel chil- 
dren under fourteen years of age to attend school a certain 
length of time each year." That is found in the 86th vol- 
ume of the Laws of Ohio, page 333. The 11th section of 
that act provides : 

That it shall be the duty of all principals and teachers 
of all schools, public and private, to report to the clerk of 
the board of education of the city, village or township in 
which schools are situated, the names, ages, and residences 
of all pupils in attendance at their schools, together with 
such other facts as said clerk may require, in order to 
facilitate the carrying out of the provisions of this act, and 
the said clerk shall furnish blanks for said purpose, and 
said reports shall be made in the last week of September, 
December, February, and April in each year. 

The defendant was indicted for a violation of the 
section which I have just read, on the 24th day of April, 
1890. The indictment is as follows : 

The State of Ohio, ) 
Lucas County. j- s^- • 

The Court of Common Pleas of Lucas County, Ohio, 
of the term of April, in the year of our Lord one thousand 
eight hundred and ninety. 

The jurors of' the Grand Jury of the county of Lucas 
and of the State of Ohio, impanelled, sworn and charged to 
inquire of offences committed within said county of Lucas, 
on their oaths and affirmations in the name and by the 
authority of the State of Ohio, do present and find that at 
the city of Toledo, in the county of Lucas, one Patrick F. 
Quigley was during all of the last week of the month of 
April, 1890, and ever since has been principal and teacher 
of and in a certain school, which said school was for a long 
time prior to said last week in April and during all of said 
last week in April continuously held and kept open for the 
attendance of and was attended by pupils under the age of 
fourteen years, and of the age of eight years and over in 
the city of Toledo, in said county and state, said city of 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLET. 223 

Toledo being and comprising what is known as a city 
school district and having therein a regularly organized 
board of education, one Harvey W. Compton was during 
all of said last week of April, 1890, and ever since has 
been the duly qualified clerk ; and that said Patrick F. 
Quigley as such principal and teacher was and is a person 
mentioned and designated as having certain duties to per- 
form in the enforcement of the provisions of an act of the 
Legislature of Ohio passed April 5th, 1890, entitled ** An 
act to compel children under fourteen years of age to 
attend school a certain length of time each year ; and that 
as such principal and teacher it became and was the duty 
of said Patrick F. Quigley to report to the said clerk of the 
said board of education, the names, ages and residence of all 
pupils in attendance at his said school, together with such 
other facts as were required by said clerk ; and that said 
Harvey W. Compton, clerk as aforesaid, as provided and 
directed by law, a long time, to-wit : many days before the 
expiration of the said last week in April, 1890, provided for 
and furnished to the said Patrick F. Quigley blanks prop- 
erly ruled for the making out of the report to be made to 
said clerk, in the last week in April in said year as pro- 
vided by law, of the names, ages, and residence of all the 
pupils in attendance at said school of which the said Pat- 
rick F. Quigley was principal and teacher as aforesaid ; 
and that the said Patrick F. Quigley did unlawfully, know- 
ingly and wilfully neglect and refuse during all of the said 
last week in April, and ever since has neglected and refused 
and still neglects and refuses to report to the said clerk of 
said board of education of said city^ the names, ages and 
residence of all the pupils in attendance upon his said 
school, or any of the names, 8ges and residence of any 
pupils of said school. Contrary to the statutes in such 
case made and provided, and against the peace and dig- 
nity of the State of Ohio. 

James H. Southard, 
Prosecuting Attorney J Lucas County. 

Upon this indictment a trial occurred, in the court of 
common pleas, before a jury, which was struck at th« 
request of the state, at the striking of which counsel for 
defendant declined to be present, and a verdict of guilty 
was rendered ; upon which verdict the court of common 



224 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

Pleas imposed a sentence of $25 and costs of the case, and 
tlie defendant to be confined in jail until the costs were 
paid and the fine. 

The petition in error contains the following assign- 
ments of error : 

1. Said Court erred in overruling the demurrer of 
plaintiff in error to the indictment in said cause. 

2. The Court erred in overruling the plea of abate- 
ment of plaintiff in error in said cause, and also in overrul- 
ing the plea of plaintiff in error to the jurisdiction of said 
Court in said cause. 

3. Said court of common pleas had no jurisdiction of 
said cause, nor of said alleged offence. 

4. The Court erred in the trial of said cause in allow- 
ing and permitting a struck jury to be selected and impan- 
elled for the trial of said cause, on the application of the 
state, against the protest and objections of this plaintiff in 
error. 

5. The Court erred on the trial of said cause in over- 
ruling and denying the challenge to the array of said jury 
by the plaintiff in error. 

6. The Court erred on the trial of said cause in over- 
raiing and denying to this plaintiff in error the exercise of 
Ms right of peremptory challenge to said jury. 

7. The Court erred in allowing and admitting improper 
d>nd incompetent evidence to be given to said jury on the 
trial of said cause against the objections of the plaintiff in 
error. 

B. The C/onrt erred on the said trial in rejecting com- 
petent and material evidence offere^i by the plaintiff in 
irror. 

9. Tfo.6 Court erred on said trial in refusing to charge 
tJba jurf as requested by the plaintiff in error. 

10. The Court erred in the law of the case, and in the 
charge as given to the jury. 

11. The verdict of the jury in said cause was cDntrary 
to evidence and against the evidence in the case. 

12. The judgment in said cause was contrary to law. 

13. The Court erred on the trial of said cause in over- 
ruling the motion of plaintiff in error in arrest of judgment. 

14. The Court erred in overruling ^he motion of plain- 
tiff in error for a new rial. 

15. Because of other errors appearing on said record. 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 225 

The first error wliich I wish to consider is that which is 
based upon the overruling of the demurrer to the indict- 
ment. Section 11, as I read it, provides : " That it shall be 
the duty of all principals and teachers of all schools, pub- 
lic and private, to report to the clerk of the board of edu- 
cation." The averment in the indictment on this point is, 
that Patrick F. Quigley was a principal and teacher of a 
school in the city of Toledo. The objection presented to 
the indictment was, that it failed to aver whether of a public 
or of a private school, the ground of the objection being this: 
that there might be schools which were neither public nor 
private, of which the defendant might be a principal or 
teacher, and therefore he might have done an act in refus- 
ing to make the reports, not being a principal of either a 
public or private school, which was entirely innocent in 
itself, and for which no indictment would lie ; and I sug- 
gested to the Court that the defendant might be a principal 
or teacher of what is known as a parochial school, and if 
so, he would not be subject to indictment under this law. 
The point I made then, and which I make now, is : that a 
parochial school is neither a public school nor a private 
school. A public school is well understood to be one which 
is supported by the state, by the exercise of the powers of 
taxation — known more frequently in our statutes as a com- 
mon school. It is a system of public instruction that the 
state provides, and no school which fails to receive public 
aid for the purposes of education can be regarded as a 
"public school." It is therefore plain that the parochial 
school, of which Dr. Quigley might have been a teacher, 
was not a public school. Neither was it a private school — 
in the sense in which that term is employed in the statutes, 
and in the sense in which it has been employed in the his- 
tory of the state, so far as I know, from the very begin- 
ning. A private school is a school in which the parent 
educates his child by the payment of tuition. It is an 
education which comes from instruction, by the will of the 
parent, upon the payment of tuition, I remember very 



226 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 

well, when I was a boy in my native town, a private scliool 
which was kept by a man by the name of Sloan ; and there 
were such schools all through Ohio, — indeed many of fchem 
are found in parts of the state now. They were schools in 
which children were educated, and the tuition for that edu- 
cation was paid for by the parent to the teacher. Those 
were private schools, and I say that the experience in the 
history of the State of Ohio shows that it was a term fre- 
quently used, and the statutes bear me out in the claim 
that no school is a private school unless it be one where a 
private teacher is employed, who is paid tuition by the par- 
ents for the tuition and education of the child. But a 
parochial school, as evidence has been introduced in this 
case to show (which didn't fully appear in the argument of 
the demurrer, and could not have done so unless the Court 
would take judicial notice of it),— but it appears in the case 
that a parochial school is a school supported by the con- 
gregation of the church, who contribute money to make a 
fund for that purpose, public so far as the limits of the 
parish are concerned, to which every child within the limits 
of the parish has a right to go, and where education is 
given free. It is not a private school, it is not a public 
school: it has another name, and another term — a parochial 
school. I insist, therefore, that inasmuch as it might have 
been that Dr. Quigley was a teacher of a parochial school, 
that act charged against him in the indictment might have 
been an innocent act, and as every presumption is to be 
resolved in favor of the defendant in the matter of plead- 
ing, and every possible theory consistent with his innocence 
in the framing of the indictment, the indictment is bad, and 
I say, consistent with the averment made in the indictment 
— that Dr. Quigley was a teacher^ — he may be an innocent 
man. 

There is another thought which I desire to submit to 
your Honors, and that is this : Away back at the very 
foundation of the common-school system in Ohio, it was 
provided that reports should be made to the Commissioner 



THE STATE OF OHIO VS. THE KEY. PATRICK F, QUIGLEY. 227 

of Public Instruction by the superintendents and teachers 
of public and private schools, and, in various forms, these 
reports to that officer have been required. I will read you 
sec. 363 of the Kevised Statutes, which shows a part of the 
duty as it exists now. *' He shall, annually (that is, the 
commissioner), require of the president, manager, or prin- 
cipal of every seminary, academy, and private school, a 
report of such facts, arranged in such form as he pre- 
scribes, and shall furnish blanks for such reports ; and it 
is made the duty of every such president, manager, or 
principal, to fill up and return such blanks within the time 
the commissioner directs." In one form or another these 
reports of superintendents and teachers of private schools 
have been required, from the establishment of our com- 
mon-school system under the new constitution; and yet 
never in all this history of more than half a century has 
the attempt been made of requiring reports from the 
superintendents of parochial schools. You may look in 
vain through all the reports of the school commissioners 
of the state as to what is done or being done by the super- 
intendents or teachers of parochial schools. And I insist, 
therefore, if your Honors please, that this practice and cus- 
tom — this management of the department of public instruc- 
tion, in this regard, has put a construction upon this statute, 
and that it has been practically determined by the school 
department that when the words "private schools " are used 
in the school laws of the state, that they do not include 
parochial schools, and when you have in this statute the 
words "private schools" used, the words "parochial 
schools" are not to be included ; that the fixed construction 
which that term has received by the legislative practice for 
half a century should control in the construction of this 
section 11. 

But there is another view which strengthens my posi- 
tion, and that is, that the lawmakers themselves were not 
Ignorant of the fact that there were parochial schools. 
Take sec. 1 ; 



328 THE STATE OF OHIO VS. THE REV^. PATRICK F. QUIGLEY. 

That all parents, guardians, and other persons, who 
have care of children, shall instruct them, or cause them 
to be instructed, in spelling, reading, writing, English gram- 
mar, geography, and arithmetic, and every parent, guard- 
ian, or other person, having control and charge of any 
child between the ages of eight and fourteen years, shall 
be required to send any such child, or children, to a public 
or private school, for a period of not less than twenty weeks 
in city districts, in each year, ten weeks of which, at least, 
shall be consecutive, and in village or township districts, 
not less than sixteen w^eeks in each year, eight of which 
shall be consecutive, unless such child, or children, are ex- 
cused from such attendance by the superintendent of the 
public, private, or parochial schools. . . . 

Now, if a child is found in the street, and is arrested by 
the truant officer, and is brought to the board of educa- 
tion to be put into school, he can be excused from attend- 
ance, and is freed from criminal liability, which the statute 
points out, if he brings a certificate from the teacher of a 
parochial school that he is a child attending school there. 
There the parochial school is recognized, and there the 
certificate of the superintendent of the parochial school is 
allowed to operate as a sufficient excuse for his non-attend- 
ance at the public school, but when it comes to the duty of 
making reports to the board of education, it confines the 
duty to the superintendent, principal, and teacher of pub- 
lic and private schools. For that reason I say the indict- 
ment is fatally defective, and should have been quashed 
upon demurrer. 

The point as to whether there was error in striking the 
jury, I shall not stop now to elaborate, as it is purely a 
matter of statutory construction, and I will refer the Court to 
the provisions of the Eevised Statutes which apply. I will 
hand a memorandum to the counsel and to the Court. 

The next error claimed is, that the Court refused to 
dismiss the case for want of jurisdiction. 

The original section 11 which 1 read is followed by a 
section providing penalties for the violation of the provi- 
sions of the law. 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 329 

Sec. 13. Any person or officer mentioned in this act and 
designated as having certain duties to perform in the en- 
forcement of any of its provisions, neglecting to perform 
any such duties shall be liable to a fine of not less than 
twenty-five dollars or more than fifty dollars for each and 
every offence. 

An amendment to this act was passed on the twenty- 
fifth of April, 1890. Sec. 11, in the amendment, remains 
as it was in the original act, with the exception that there 
is added this paragraph : 

And it shall be the further duty of said principals and 
teachers to report to the truant ofiicer, the superintendent 
of schools, or the clerk of the board of education, all cases 
of truancy or incorrigibility in their respective schools as 
soon after these offences shall have been committed as 
practicable. 

And then section 13, which is substituted for the original 
section 13, is as follows : 

Any person or officer mentioned in this act, and desig- 
nated as having certain duties to perform in the enforce- 
ment of any of its provisions, neglecting to perform any 
such duties, shall be liable to a fine of not less than twenty- 
five dollars nor more than fifty dollars for each and every 
offence ; and mayors, justices of the peace, and probate 
judges shall have jurisdiction to try the offences described 
in this act, and their judgment shall be final. 

Sec. 456 of the Revised Statutes, in defining the juris- 
diction of the court of common pleas in criminal cases, 
provides : 

It shall have original jurisdiction of all crimes and 
offences, except in cases of minor offences, the exclusive 
jurisdiction of which is vested in justices of the peace, or 
that may be vested in courts inferior to the common pleas. 

The position I maintain upon this subject is, that the 
language of the amended statute of 1890 confers exclusive 
jurisdiction in these cases upon courts inferior to the court 
of common pleas. It is admitted that under the original 



330 THE STATE OF OHIO VS, THE KEY. PATEICK F. QUIGLEY. 

section 13 the offence would have been indictable, because 
there was simply a definition of a crime found there and 
the fixing of the amount of penalty. No other court having 
been fixed for the trial of the case, it necessarily followed 
that the court of common pleas would take jurisdiction of 
it upon indictment. But that act was repealed, — not merely 
the section which provided for the method of procedure : 
for I submit that the method of procedure under indict- 
ment was as incident and as necessarily attaching to the 
section and to the prosecution under it as though it had 
been expressly stated in the section that the court of com- 
mon pleas shall have jurisdiction to try these cases. I say, 
not only did the act repeal the 13th section, which declared 
the method of procedure, but it repealed the section which 
defines the offence and which imposes the duty upon the 
principals and teachers of these schools to make these 
reports. The principle of law which determines in this 
case that this jurisdiction thus conferred is exclusive, I 
maintain, is found in the case of Commissioners vs. Bank, 
32 0. /S'. 194: 

When a statute creates a new offence by prohibiting 
and making unlawful anything which was lawful before, 
and provides a specific remedy against such new offence — 
aot antecedently unlawful — by a particular sanction and 
method of proceeding, that method of proceeding and none 
other must be preserved. 

I understand that it is not disputed that if the present 
statute of April 25, 1890, had created for the first time the 
offence described and punished in sections 11 and 13, the 
rule above stated would apply, and the remedy therein 
pointed out would be exclusive. 

But it was held by the court below that the rule did 
not apply to, because the offence therein described is not 
a new offence, but had been made one by the act of April 
15, 1889, to which this act was an amendment. It was 
therefore held that the remedy of the present act by sum- 
mary proceedings was not exclusive, and that the prosecutor 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 231 

had his election to prosecute by indictment or by the 
method indicated by the last act. But of this I remark, 
that the offence described in the act of 1890 is not the same 
one as contained in the act of 1889. It contains additional 
elements. The last paragraph of section 11 is added — be- 
ginning with the words, " And it shall be the further duty," 
etc. 

The theory that the prosecutor can elect as between the 
two methods of procedure, can only rest under the proposi- 
tion that the remedy of the statute of 1890 was cumulative 
to that of the statute of 1889 ; in other words, that thej 
coexist. But this cannot be, for the act of 1890, before it 
goes into operation, repeals the act of 1889. It is as though 
the act of 1889 had defined the offence and declared ex- 
pressly that it should be punished by indictment. Then if 
a new act were to be passed which, without repealing the 
other act, should provide for the punishment of the offence 
in some other manner, it might be claimed with some show 
of success that the latter remedy is cumulative, and that 
the prosecutor might make his election as between them. 

But when the act declaring the offence to be punishable 
by indictment has been repealed, then no method of punish- 
ment is left except that which is prescribed in the repealing 
statute. Its method of procedure therefore is not one in 
addition to that prescribed by the first act, but is in sub- 
stitution for it. 

Where, in common law, an offence is punishable by 
indictment and that offence is made punishable by statute, 
the latter remedy is held cumulative, because the common- 
law offence is not repealed, nor therefore the remedy which 
it prescribes. The two remedies therefore coexist, and the 
prosecutor may elect between them. But where a statute 
re-enacting a prior statutory offence defines and fixes a 
new remedy and repeals the old statute and fixes a differ- 
ent remedy, then it is clear that the two remedies do not 
coexist, inasmuch as the statute which created the first has 
ceased to exist. 



232 THE STATE OF OHIO r.v. THE KEY. PATRICK F. QUIGLEY, 

Tlie offence cannot be prosecuted by indictment unless 
the statute wliicli authorized it to be so prosecuted is in 
force ; else it would follow that a prosecution might be 
carried on under a statute which had been repealed, but 
this, I submit, is impossible in reason and under the 
authorities. 

I desire to call the attention of the Court to the case of 
Mitchell V. Brown, 1 Ellis & Ellis, 267. I will read a part 
of the statement of facts, in order that the exact point may 
be presented. The case, stated in substance, is as follows : 
*' On the 24tli of September then last past, James Brown, 
of etc., the respondent, laid an information, not in writing, 
before one of the justices of the borough of Newport, 
against Eichard Henry Mitchell, the appellant, charging 
him with having, on the 18th of April then last past, cast 
from a barge a large quantity of filth and rubbish into the 
navigable river Usk. The information was laid under Stat. 
19 G. 2, c. 22, s. 1 ; and the following is a copy of the sum- 
mons issued on the information so laid and served upon 
the appellant. The information was heard before the jus- 
tice, and Mitchell was adjudged to forfeit fifty shillings. 

The case then set out the evidence, and stated that, on 
behalf of the appellant, it was objected that the evidence 
did not show that the appellant was master, or acting as 
master, and that there was no proof of the offence within 
the Stat. 19 G., and that Stat. 19 G. 2 w^as repealed by 
Stat. 54 G. 3, that the magistrate " said he was not satis- 
fied that the act of 19 G. 2 was repealed, and fined the 
defendant 50s. and costs." And the magistrate concluded 
the case as follows : 

" The above evidence being the grounds of my determi- 
nation and conviction, the following questions were raised 
before me, the said justice, on behalf of the appellant :" 
(The first, second, and third were as to the effect of the 
evidence.) 

" Lastly, that the statute under which the proceedings 
Were taken against the appellant, viz., the 19 G. 2, c 22, was 
repealed by the act 54 G. 3, c. 159, s. 11, by implication 
and repugnancy of one statute to the other." 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY, 233 

The question stated was : ," Whether or not I, the said 
justice, was correct in point of law in my determination as 
aforesaid, or as to what should be done in the premises." 

The case was argued on an early day in the term. 

And the arguments of counsel appear, which showed 
the difference between the two statutes. Lord Campbell, 
C.J., now delivered the judgment of the court. 

If that part of Stat. 19 G. 2, on which this conviction 
was founded, be still in force, we think that the conviction 
would be supported by the evidence. 

And the Court will remark that this was not a case 
where there was a statutory offence defining the common- 
law offence, or providing a new penalty for that which was 
a common-law offence, but the first offence was a statutory 
offence, just as the first offence here ; and the second offence, 
as defined by the act of George III., was a statutory of- 
fence as well ; so that the case is on all-fours with this case. 

If that part of Stat. 19 G. 2, on which this conviction 
was founded, be still in force, we think that the conviction 
would be supported by the evidence. But after a careful 
comparison between this statute and Stat. 54 G. 3, c. 159, 
we have come to the conclusion that such part of the 
former statute is repealed. 

Not an express repeal, as here, but a repeal, as the 
Court thinks, by repugnancy. 

The offence charged in the information and conviction 
seems to us to be described in section 11 of Stat. 54 G. 3, 
c. 159 ; and, if it had not been that both the prosecutor 
and the magistrate profess to proceed upon the earlier 
statute, the conviction might be supported on the later 
statute. It was contended that section 11 of Stat. 54 G. 3, 
as to throwing rubbish and filth into navigable rivers, is 
confined to navigable rivers near the public dockyards, 
arsenals, etc. We do not think that there is any reference 
in that section to the second or any other section of the 
act, to create such a restriction ; and the offence created by 
Stat. 19 G. 2 appears to us to be again described in Stat. 
19 G. 3, c. 159, s. 11. 



234 THE STATE OF OHIO VS. THE KEV. PATRICK F. QUIGLEY. 

But if the later statute again describes an offence 
created by a former statute, and affixes a different punish- 
ment to it, varying the procedure, etc., giving an appeal 
where there was no appeal before, we think that the prose- 
cutor must proceed for the offence under the later statute. 
If the later statute expressly altered the quality of the 
offence, as by making it a misdemeanor instead of a felony, 
or a felony instead of a misdemeanor, the offence could 
not be proceeded for under the earlier statute ; and the 
same consequence seems to follow from altering the pro- 
cedure and the punishment. The latter enactment operates 
by way of substitution, and not cumulatively giving an 
option to the prosecutor or the magistrate. 

Now, Judge Pugsley's opinion upon this subject is 
printed in the 26th Weekly Laio Bulletin, No. 8, of the 
24th of August, and is on page 131. 

The second ground [he says] urged in support of the 
motion is that the court has no jurisdiction over the offence. 
The act as originally passed made no provision as to the 
courts in which violations of the act should be prosecuted ; 
but section 13, as amended April 25, 1890, contains this 
provision: "And mayors, justices of the peace, and pro- 
bate judges shall have jurisdiction and try the offences 
described in this act, and their judgment shall be final." 
It is claimed that by virtue of this provision no other 
court or tribunal than those named have jurisdiction — in 
other words, that the jurisdiction of mayors, justices of the 
peace, and probate judges is exclusive. Under the consti- 
tution of the state the court of common pleas has such 
jurisdiction as is conferred upon it by law. Section 456^ of 
the Revised Statutes defines the jurisdiction of the court 
of common pleas in civil and criminal cases. As to crimi- 
nal cases it provides as follows : " The court of common 
pleas shall have original jurisdiction of all crimes and 
offences, except in cases of minor offences the exclusive 
jurisdiction of which is vested in justices of the peace, or 
that may be vested in courts inferior to the common pleas." 
Under this section, without any doubt, the court of com- 
mon pleas has jurisdiction over all the offences against this 
act, unless the exclusive jurisdiction of such offences is 
conferred upon mayors, justices of the peace, and probate 
judges. Exclusive jurisdiction is not conferred upon these 



THE STATE OE OHIO VS. THE REV. PATRICK F. QUIGLEY. 235 

magistrates in express terms. Is it conferred by necessary 
implication ? 

It is well settled that when jurisdiction over an offence 
is in one court, and a statute is passed simply conferring 
jurisdiction over the same offence upon another court, this 
leaves the jurisdiction concurrent in both courts, and either 
can try the case. And the rule requiring a strict construc- 
tion of penal statutes does not apply to the matter of juris- 
diction ; all doubts and presumptions are in favor of the 
jurisdiction of the tribunal exercising it. [Quoting author- 
ities.] 

While not disputing these propositions, counsel claim 
that this case comes under another well-established rule, 
which is that when a new offence is created by statute, or 
when an act is made unlawful which was lawful before, and 
the statute provides a special remedy against such new 
offence by a particular sanction and method of proceeding, 
that method of proceeding and none other must be pur- 
sued (Commissioners v. Bank, 32 Ohio St. 194). It is 
not clear upon authority how far this rule extends in the 
matter of the jurisdiction of courts in criminal cases, when 
there is a general statute conferring jurisdiction upon a 
particular court over all offences. 

But there is just the error into which Judge Pugsley 
falls : the jurisdiction over all offences is not conferred ; it 
is conferred only over such offenses as are not given to the 
exclusive jurisdiction of other tribunals. There is, there- 
fore, an express exception to the offences which are made 
the subjects of jurisdiction of the court of common pleas, 
and that exception is the offences here which other courts 
inferior to the court of common pleas have exclusive juris- 
diction of. 

The English case of Eex v. Eobinson, 2 Burroivs, 779, 
decided in 1759, is usually referred to as containg the first 
clear exposition of this rule. In that case the defendant 
had been convicted on an indictment for refusing to obey 
an order of the general quarter sessions requiring him to 
maintain certain minor children. The statute under which 
the indictment was found fixed a particular penalty and pre- 
scribed a summary remedy for recovering the penalty. A 
motion was made by the defendant to arrest the judgment 



236 THE STATE 0¥ OHIO V8. THE UBY. PATRICK F. QUIGLEY. 

on the ground tliat the summary remedy given by the 
statute was exclusive. Lord Mansfield refused to arrest 
the judgment, and held that the offence was properly in- 
dictable. In deciding the motion, he said that " the true 
rule of distinction seems to be that when the offence in? 
tended to be guarded against by a statute was punishable 
before the making of such statute, prescribing a particular 
method of punishing it, then such particular remedy is 
cumulative, and does not take away the former remedy; 
but when the statute enacts " that the doing of any act not 
punishable before shall for the future be punishable in 
such and such a particular manner," then it is necessary 
that such particular method be specifically pursued, and 
not the common-law method of indictment. 

No case is cited holding that, when a general statute 
confers jurisdiction upon a particular court over all of- 
fences, such jurisdiction is taken away by a later statute 
creating a new offence and conferring jurisdiction over the 
offence on another court, but not making it exclusive. On 
the other hand, there is authority for holding that in such 
a case the jurisdiction conferred by the general statute still 
remains. 

Now he refers to a case in Wisconsin, Allen vs. State, 
and it is only necessary for me to refer to what is contained 
here to justify the criticism which I propose to make : 

That was a conviction in the Circuit Court of Wisconsin, 
under an indictment for selling intoxicating liquors without 
a license. I will read from the opinion of the court, on 
page 334, what is said on this subject: "The first point 
made is that the circuit court has no original jurisdiction of 
this offence, it not being indictable by the law of the state. 
Section 5 of chapter 162 of the session laws of 1851, pro- 
vides that if any person shall sell intoxicating liquors with- 
out first having obtained a license according to the provi- 
sions of this act, he shall be deemed guilty of a misdemeanor, 
and on conviction thereof shall be punished by a fine. The 
sixth section gives to justices of the peace power to try and 
determine all offences growing out of the provisions of the 
act, but the act nowhere professes to give the justices' court 
exclusive jurisdiction of such offences, or to prohibit the 
circuit court from taking cognizance of them by indictment. 
Such being the case, the circuit court undoubtedly has 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 237 

oiiginal jurisdiction of all offences against the act. By sec. 
8 of art. 7 of the constitution the circuit courts have originah 
jurisdiction of all matters, civil and criminal, not thereafter 
prohibited by law." 

Now see the difference between that and our section 
here, which we are considering. There the circuit court 
had jurisdiction of all criminal offences unless there was an 
express prohibition upon the court to exercise the juris- 
diction. Here the court of common pleas has jurisdiction 
of all offences except those where exclusive jurisdiction is 
given to another court. The question here, when we want 
to determine whether the court of common pleas has juris- 
diction, is : " Has exclusive jurisdiction been given to any 
other tribunal inferior to that ? " The question in the State 
of Wisconsin is : " Does the law creating the offence pro- 
hibit the jurisdiction of the circuit court?" There the 
court held that the jurisdiction was concurrent, because the 
circuit court was not prohibited from exercising it. Here, 
I say that this jurisdiction never had existed in the com- 
mon pleas under the statute of 1890, because the act dis- 
tinctly confers exclusive jurisdiction upon the inferior 
courts. 

If this view is correct, then it follows, and the only 
question that the court must determine is : the effect of the 
statute saying that these courts shall try these cases and 
Jiat their judgment shall be final. It attempts to confer 
what is known in the common law as the power to carry 
out a judgment in a criminal case in a summary proceeding. 
It contains a summary proceeding which inferior courts at 
common law always had exclusive jurisdiction of, and to 
give these inferior courts exclusive jurisdiction in analogy 
with the laws upon the subject of summary proceedings 
in the common law. I have a volume of Paley on Sum- 
mary Convictions, which I intended to bring over here, 
and which I will send to the consultation rooms, in which 
the doctrine is laid down, just as it is in Ellis : that where 
an offence is re-defined — a statutory offence — is re-defined 



238 THE STATE OF OHIO VS. THE EEV. PATRICK E. QUIGLEY. 

with a new method of proceeding pointed out, that new 
method of proceeding must be pursued. Now, upon what 
ground ? Upon the ground of repugnance, which operates 
to repeal. 

And there was another question in these cases — a ques- 
tion that never could have arisen if there has been an ex- 
press repeal of the first statute by the second statute. The 
question was, whether the method of procedure pointed 
out by the second statute was the only one, because there 
had been no express repeal. It was not claimed that the 
first section had been repealed. The moment the court 
reached the conclusion that the first act had been repealed, 
then it said that there was no other mode of proceeding ex- 
cept in the manner pointed out by the last statute. I say 
that never could have been a matter of dispute in the case 
which I have referred to if there had been, as here, an ex- 
press repeal of the original statute which defined the crime 
and made it punishable by way of indictment. 

Now the judge continues : 

But conceding the rule to be as broad as is claimed, 
does this case come within the rule ? In other words, is 
the offence with which the defendant is charged, a new 
offence, created by the act of 1890, which confers juris- 
diction upon mayors, . justices of the peace, and probate 
judges? 

Section 11 of the act as originally passed, April 15, 1889, 
required all principals of all schools to report the names, 
ages, and residence of the pupils in attendance at their 
schools. 

This section was first amended April 2, 1890. Tlie only 
change made by the amendment was in requiring these 
reports to be made in special districts as well as in city, 
village, and township districts. The section was again 
amended April 25, 1890. The only change made by this 
last amendment was in making it the further duty of prin- 
cipals to report to the truant officer all cases of truancy in 
their schools. 

Sec. 13 of the act providing for the penalty, as originally 
passed, April 15th, 1889, was precisely the same as it is 
now, except that by the amendment of April 25, 1890, the 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. ^39 

clause was added conferring jurisdiction upon mayors, 
justices of the peace, and probate judges. 

It will thus be seen that continuously from the time the 
original act went into effect down to the present time, it has 
been the duty of all princij)als of schools in city districts 
to report to the clerk of the board of education the names, 
ages, and residence of the pupils of their schools. No 
change of the original law, in this particular, was made by 
any of the amendments. And the defendant is charged in 
the indictment only with a violation of the duty. He is 
not charged with a violation of any of the new duties im- 
posed by the amendments. It will also be observed that 
continuously from the time the original act went into effect 
down to the present time, the violation of this particular 
duty has been an offence for which the punishment has al- 
ways been the same. 

The act, in many of its features, has remained the same ; 
but how should you apply the word " continuously " to 
this provision as to the procedure, and as to the crime, and 
as to the penalty ? The law as it was first passed fixed the 
method of procedure, but it didn't last a year, and then it 
was repealed and a new one was passed. It may be that 
in defining the crime by the new statute the same words 
were used as in the original statute, but the procedure was 
different. Is that a continuous existence ? The moment 
the statute of 1889 was repealed upon this subject, that 
moment it ceased to exist. When there has been a new act, 
creating a new offence, there has been a break, a breach any- 
way and a break between the time of the passage of the 
law and its going into operation, when the original act had 
been repealed. There was no continuation. There couldn't 
be. The one offence lived a year and then died, and this is 
a new offence. It don't make any difference whether there 
intervened a year or fifty years. Will it be contended that 
this act, if it had been passed in 1890, defining an 
offence which had been created fifty years ago, was a con- 
tinuous act with that, although the language might have 
been the same? And if not, why not? Because by the 
repeal the old offence ended and the possibility of continu- 



240 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 

ing came to an end. Therefore this is a new offence, and as 
new as the first offence was when it was defined : as new as 
it is when by statute an offence is created which has been 
unknown to the common law. 

You take a common-law crime — say the crime of bur- 
glary — breaking into a house, — and a statute is passed defin- 
ing altogether a new offence, making the breaking into a 
corn-house burglary, and fixes a new method of procedure, 
it is perfectly plain that the new method of procedure must 
be followed. There is a new offence. But, suppose the 
statute declares that the punishment for burglary shall be 
imprisonment in the county jail, and that justices of the 
peace shall have jurisdiction to try this offence. In that 
case the old common law defining burglary has not been 
repealed — it is still in existence. The methods of procedure 
which it first had still continue, and the methods of proced- 
ure set out by the statute still continue, and then it is a 
matter of election or choice by the prosecutor as to which 
method of prosecution he shall adojDt. He chooses between 
them because they are coexisting — the one defined by the 
common law and the other by the statute. But here where 
are your two offences ? There is only one offence, and that 
is the offence created by the law of 1890, and that fixes the 
method of procedure. If the other law had not been re- 
pealed, then there would be two offences and two methods 
of procedure, and then the prosecuting attorney could have 
had his election. But how can he have his election when 
there is only one offence, and that defined by the law of 
1890 ? Here there is but one offence and one remedy, and 
that remedy is summary, and the proceeding indicated by 
the statute, on indictment, therefore is not good. 

There are so many questions in this case. There is one 
question which I would like to discuss, but I will not, here : 
I will discuss that in a brief. 

Section 9 of the act (of April 15, 1889) provides : " That it 
shall be the duty of officers empowered or appointed under 
this act to assist in the enforcement thereof, to institute, or 



THE STATE OF OHIO VS, THE EEV. PATEICK F. QUIGLEY. 241 

cause to be instituted, proceedings against any parent, 
guardian, or other person having legal control or charge 
of any child, or corporation, violating any of the provisions 
of this act." Now I will not discuss the proposition as to 
whether or not it was necessary for the prosecutor, in the 
indictment, to have averred that this school district of the 
city of Toledo came within the exception. I will, for the 
purposes of the point which I am now about to present, 
concede that it was not necessary that he should set out 
that there were sufficient seating accommodations in the 
city of Toledo, where this offence is alleged to have been 
committed. But, upon the trial of this case, it becomes 
necessary that it shall appear to the jury, beyond a reason- 
able doubt, that there are in the city of Toledo sufficient 
seating accommodations for those who are obliged to attend 
school. Now I submit that it does nOt so appear in the 
record. There is no evidence to show that there were 
sufficient seating accommodations ; but, on the contrary, 
the evidence was overwhelming that there were not suffi- 
cient seating accommodations. I will just give, in round 
numbers, what is my recollection of the evidence upon that 
point. There were about thirteen thousand children be- 
tween the ages of six and fourteen obliged to attend schooL 
There was seating capacity, when you ehxiiinate those 
.children between the ages of sixteen and twenty-one, for 
only 11,500 — that is, in round numbers. There were thir- 
iteen thousand children between these ages compelled by 
'.this law to attend school, and in the public-school build- 
ings there was seating capacity for 11,500. Then we showed 
that so far as Dr. Quigley's school was concerned there 
was seating capacity for 300 children there, and that there 
were six hundred children between those ages who would 
be compelled under this law to attend school, and we gave 
no other evidence of the seating capacity of any other pri- 
vate or parochial schools in the city, for the reason that 
the children in Dr. Quigley's parish, if all compelled to 
attend school, could only be put into the public school or 



242 THE STATE OF OHIO V^. THE REV. PATRICK F. QUIGLEY. 

into Dr. Quigiey's scliool ; tliej could not attend St. Mary's 
school, because children only who live in the parish are, 
under their rules, entitled to attend there. It was sufficient 
for us to show that there was not sufficient seating capacity 
in Dr. Quigiey's scliool and in the public schools for the 
children who might be compelled in Dr. Quigiey's school 
to attend the public school. We showed that by proof un- 
contradicted. Judge Pugsley held that pupils who attended 
the parochial school were not obliged to go to the public 
school and were not compelled under this law to attend the 
public school, because the fact that they went to the paro- 
chial school showed that they were not violators of the 
law, and then he said that it appeared that there was seat- 
ing capacity in the other parochial schools for four or fiYQ 
thousand children. But it didn't appear whether there was 
seating capacity for all of them in those schools ; and I in- 
sist that even if the private schools are to be taken into 
consideration, it was the business of the Court to say to 
the jury that they must be satisfied by the proof beyond a 
reasonable doubt, that there was sufficient seating capacity 
in the public and private schools of the city of Toledo for 
all the children which could be compelled to attend. That 
didn't appear by the evidence, and therefore I say it was 
manifest error. I do not see why the Court should not 
take judicial notice of what everybody knows — that the 
schools are now, and have been, in a very crowded condi- 
tion. There is not sufficient seating capacity in the public 
schools, and if these parochial schools should be closed 
and the children turned into the public schools, there is 
not half seating capacity for their accommodation. There 
is not sufficient seating capacity in Dr. Quigiey's parish, 
and I do not think in any parish in the city. Now, to en- 
force this act in a city where there is such an inadequacy 
of seating capacity is in violation of the spirit of this law. 
While it may not have been necessary to have averred it in 
the indictment, it should have appeared in the proof, beyond 
reasonable doubt, that there was sufficient seating capacity 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. ^13 

for the cliildren who might be obliged to attend the public 
schools, but the record does not show it. 

There was error in the Court's refusal to charge that the 
law was unconstitutional. And for three reasons I insist 
is the law unconstitutional: First, because it violates the 
natural law. That proposition I need not discuss, because 
it has been so fully and ably and elaborately discussed by 
my associate counsel. 

The second proposition is, that the constitution of the 
state, in granting to the legislature power to legislate on 
the subject of education, limited that power to the creation 
and maintenance of a system of common schools, and that 
therefore it has no power to legislate upon the subject of 
private or parochial schools. I understand very well the 
rule that the construction of a state constitution is differ- 
ent from the rule which prevails when you come to construe 
the constitution of the United States. There, you look to 
see whether the power is expressly conferred. Here, you 
look to see whether the power is prohibited — either ex- 
pressly or by implication. The grant of legislative authority 
there is not as in the Constitution of the United States — that 
all legislative authority herein granted shall be exercised 
by Congress ; but it is that all legislative authority shall 
be granted to the general assembly. I am only going to 
briefly summarize upon this branch of the case, because I 
have a former argument upon the subject, which was printed 
in the Commercial, and which I desire to submit to your 
Honors as a part of my argument in this case. I say, in 
the first place, that when the term " all legislative author- 
ity " is employed, it means that authority or power which 
, was ordinarily understood to be legislative in its nature, and 
that you must determine the meaning of the term " legisla- 
tive power " by the circumstances which surrounded the 
adoption of the constitution, by the history of the common 
law, and by the history of this country in that regard. 
Now the legislative authority was never, at the common 
law, understood to apply to the subject of education. Au- 



244 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

thorities upon that subject are fully presented liere. It 
was left entirely and solely to the father, the parent and 
head of the family. There were no such things in Great 
Britain as public schools, and it is only recently that they 
have established free schools at all, and they are under the 
control of the church. Education was not regarded as a 
subject of legislative authority, but has come within the 
sphere of legislative authority through the federal consti- 
tution, and since that time, within this state, it has never 
been regarded as being wdthin the power and sphere of leg- 
islative authority, except so far as the establishment of the 
common-school system was concerned. The first act ever 
passed in the State of Ohio upon the subject of education 
provided that the proceeds of the sale of section sixteen 
in the different townships should be divided among the 
teachers of the schools in proportion to the number of 
scholars they taught; and it was only in 1825 that a public- 
school system was provided for, and then there was no at- 
tempt made to interfere Avith private schools — they knowing 
I suppose, that no such thing as that could be lawfully 
done. The limitation upon the legislative authority prior 
to the adoption of the constitution of 1852 was such as that 
it only enabled them to establish and provide for a public 
or common school education. 

When you come to the provisions of the new constitu- 
tion you find one single article devoted entirely to the sub- 
ject of education. And right at this point I desire to say 
that even if a general grant of power over the whole subject 
of education, so as to include private and parochial schools, 
— if there were a general grant of such legislative power, the 
subject of education is withdrawn from that general grant 
by the specific grant contained in the article on the subject 
of education. In other words, I maintain that when 
specific power over a particular subject is given, it will be 
presumed to be exclusive, and withdraw the subject from a 
more general grant of power. It follows therefore that 
eveu if in the general grant of legislative power the author- 



THE STATE OF OHIO VS. THE REV, PATRICK F. QUIGLEY. 245 

ity to interfere with private schools was included, it will be 
held to be withdrawn from that general grant by the specific 
grant in article six. This doctrine is recognized in Eeeves v. 
Treasurer of Wood County, 8 0. S. 339. The constitutional 
provision under discussion was Sec. 6, Art. 13, as follows : 
" The general assembly shall provide for the organization 
of cities and incorporated villages by general laws ; and 
restrict their power of taxation, assessment, contracting 
debts, and loaning their credit, so as to prevent the abuse 
of such power." Judge Brinkerhoff says : " It is urged in 
argument that inasmuch as the power of authorizing assess- 
ments, as distinct from taxes proper, is by the language of 
the constitution recognized only in connection with its 
exercise by cities and villages, therefore, under the maxim 
expressto unius, etc., the power of the legislature to author- 
ize assessments must be limited to its exercise with cities 
and villages. This argument would be entitled to great 
-weight, and it seems to me conclusive weight, if the clause 
of the constitution referred to contained or was intended to 
express a grant of the power of assessment as distinct from 
that of taxation proper. In that case, the grant being 
in terms limited, the maxim expressio unius would fairly 
apply, and all implications of power beyond the terms of 
the grant would be held to be excluded." 

The same doctrine is recognized in another leading case 
in Ohio, to which I will refer your Honors. But the 
proposition has been maintained by the authorities in this 
state, that if there be a specific grant of power, that 
grant shall be held to be exclusive, and withdraw from the 
legislature all other power. There is no power in the consti- 
tution upon the subject of education except that in Article 
6, which gives power to establish public schools; and that 
being a grant of power, it is a withdrawal of other power 
over the subject of education which might be included 
in the general grant of legislative authority. But it was 
not included, because legislative authority was never sup- 
posed to extend to private schools nor to parochial schools. 



246 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

Whether this hiw refers to parochial schools, I will not 
refer to now. There is no more absolute power in the con- 
trol of the public schools that is attempted to be giveu 
bj this statute over the children in the parochial schools. 
If that be true, then I ask where does the legislature of the 
State of Ohio get its authority to do what it here seeks to 
do ? Not from the provision which authorizes it to estab- 
lish public schools, and from no other provision of the con- 
stitution, if there is any other, granting power over the 
subject. 

In the third place, I sajthat the law is unconstitutional 
because of its penalties. It gives to these justices of the 
peace and officers the power to enforce the penalties of this 
law. The father who will not obey the law may be brought 
before these officers and fined and sentenced to confinement 
for a period not exceeding three months. The children 
who do not obey the law are liable to be arrested, on com- 
plaint, and brought before the officer ; for playing truant 
and refusing to attend school is declared to be a misde- 
meanor ; and then upon trial, if this inferior tribunal finds 
a boy guilty it sentences him to confinement in the Children's 
Home ; and if the trustees of the Children's Home say 
that the boy is not a good boy and is liable to disturb the 
children there, then,on their own certificate, he is transferred 
to the Boys' Industrial Home, or Reform Farm, at Lan- 
caster, and, if it be a girl, to the Girl's Industrial School at 
Delaware. The boy goes to this Home iinder that law 
creating the Children's Home and remains there until he is 
sixteen years of age. And if he is sent down to Lancaster, 
he ooes there sentenced for a misdemeanor until he is sixteen 
years old. He is sentenced for a misdemeanor for eight years, 
it may be, to the Children's Home, and if the trustees of the 
children's home say that he is not a good boy and is liable 
to demoralize the pupils there, he is sent, may be for eight 
vears, to the Reform Farm. Now I say that the law is un- 
constitutional in that it provides for the punishment of 
crimes — of crimes tliat are to be pursued in the way of the 



THE STATE OF OHIO T-y. THE KEY. PATKICK P. QUIGLEY. 2^7 

common law, at least so far as tliis ease is concerned — it 
provides that boys and girls may be imprisoned for years, 
without any opportunity of triiil by a jaiy. The summary 
proceedings which are authorized by this section 11 are pro- 
ceedings without a juiy trial-unless there may be some pro- 
vision made for it in the ease of a trial in the probate 
court ; but, so far as the justices of the peace ai-e concerned 
and the mayors, and probably so far as the probate courts 
are concerned, the eases may all be tried without a juiy. 
In the case of Inwood v. State it was held that ti'ial by 
jury is not a right to which a citizen is entitled, that the 
right of trial by jury in such a case as that is not secured 
bv the constitution ; but they hold there by the clearest im- 
plication, what has been held repeatedly before, that where 
it is a part of penalty that the person accused shall be 
imprisoned if convicted, then the light of trial by jury can- 
not be taken away — not where the imprisonment is a mere 
part of the method of a collection of fine. 

Xow, there are two cases: 19 Ohio State, Prescott u. 
State. This was a case fi'om the Tan Wert county. 

At the Januaiy term, 1S70, of VanWert Common Pleas, 
the grand jury made a return in writing, signed by the 
prosecuting attorney, to the following effect : *' That an ac- 
cusation was made to them that Benjamin Prescott, on 
February 8, 1869, in that county, unlawfully, wilfully, 
maliciously and feloniously burnt and caused to be burnt 
a barn, the property of John Boals, of the value of three 
hundred dollars, conti-ary tv^ the statute, etc. ; and that, 
having examined the evidence, the jury tind the accusation 
to be ti'ue, and that it was supported by sulheient evidence 
to put Pi"escott on tidal on the accusation ; and that he was 
a male infant under the age of sixteen years, and of the age 
of fourteen years at the time of the return ; that he was 
then and had been for more than a year past a resident of 
Tan Wert County ; that he was vicious and incorrigible, 
and a suitable person to be committed to the guardianship 
of the directors of the House of Refuge or to the Reform 
Farm in Ohio ; and finding him to be such a person they 
make the return as stated, instead of an indictment, for tl-»- 



248 THE STATE OF OHIO VS. THE EEV. PATRICK i\ QUIGLEY. 

court to take such action in the premises as the law pro- 
vides." 

Upon this return of the grand jury, and by reason of 
the facts therein stated, the court ordered Prescott to be 
committed to the Reform Farm until he became of age, or 
was reformed, and duly discharged according to law ; and 
that the sheriff execute the order as soon as practicable. 

To all which Prescott by his counsel excepted. 

Prescott was accordingly committed to theReformFarm, 
and on his behalf this writ of error is prosecuted to reverse 
the order and judgment of the court. 

In the assignments of error, it is claimed that the 
statute in question is in conflict with Art. 5 of the amend- 
ments to the constitution of the United States ; also with 
sections 5 and 10 of art. 1 of the constitution of the state. 

Those are the sections which I claim that this law 
violates. 

The amendment to the constitution of the United States 
referred to has no bearing on the case. That provision 
does not operate as a limitation of the power of the state 
governments over their own citizens, but is exclusively a re- 
striction upon federal power. This has been repeatedly 
decided by the Supreme Court of the United States, and in 
the case of Twitchell v. Commonwealth was not regarded 
as an open question. 

The provisions referred to in our state constitution 
relate to the preservation of the right of trial by jury, and 
to the rights of the accused in criminal prosecutions. We 
do not I'egard this case as coming within the operation of 
either of these provisions. It is neither a criminal prose- 
cution nor a proceeding according to the course of common 
law, in which the right to a trial by jury is guaranteed. The 
proceeding is purely statutory ; and the commitment, in 
cases like the present, is not designed as a punishment for 
crime, but to place minors of the description and for the 
causes specified in the statute under the guardianship of 
the public authorities named, for proper care and disci- 
pline. 

Now the court clearly intimated that if it were a 
criminal proceeding, according to the common law, the 
party would have been entitled to a trial by jury. How 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 24:9 

is it here in the case of a child ? Upon complaint, he is 
arrested and brought before an officer. He is charged with 
being guilty of a misdemeanor — he is charged with being 
guilty of an offence under the laws of the state. Everything 
that is essential to a criminal prosecution is here, both in 
the case of the boy who is truant and of the father who 
violates the law, and he is liable to imprisonment for a 
period of time not to exceed three months. 

In the case of the Cincinnati house of refuge v. Patrick 
H. Eyan, 37 0. S. 197 ; error to the Superior Court of Cin- 
cinnati : 

This was a proceeding in the court below by defendant 
in error, to obtain the custody of his three minor children. 
In his petition for a writ of habeas corpus he avers that 
he is the father of these children, all of whom are under 
the age of six years ; that their mother is dead, and that he 
has always provided for them in a suitable manner, and is 
still willing so to do ; that they were forcibly taken from 
his home on the 16tli of November, 1880, and carried to the 
Children's Home, and thence, upon the commitment of 
Henry Harmyer, a justice of the peace of Hamilton County, 
committed to theHouse of Kefuge ; that he had no notice of 
the taking of these children, or of these proceedings. He 
therefore claims that the custody of said children by plain- 
tiff in error is without legal authority. The answer of the 
directors of the House of Hefuge justifies the custody and 
detention under the warrant of commitment of said justice 
of the peace. 

It appears that these children were found by one 
Joseph L. Smith, an officer of the Society for thePrevention 
of Cruelty to Children, and brought before the justice for 
hearing upon his affidavit that they were without a home 
and homeless. 

Judge Johnson holds that under such circumstances 
the confinement was a proper confinement ; that it was not 
a prosecution for a crime ; that here were children taken 
up upon the street and without a home. 

The commitment is not designed as a punishment for 
crime, but to place destitute, neglected, and homeless chil- 



250 THE STATE OF OHIO VS, THE EEV. PATRICK R. QUIGLEY. 

dren, and those who are in danger of growing up as idle 
and vicious members of society, under the guardianship of 
the public authorities for their proper care and to prevent 
crime and pauperism. As to such infants, it is a home and a 
school, not a prison. While no provision is made for notice 
to those interested, if such there be, yet it would doubtless 
be proper for the examining officer, where it is practicable, 
before making the order, to require such notice. . . . 

(Noon recess.) 

The exact question which I was presenting at the close 
of my argument this morning has been presented to the 
Supreme Court of Illinois, and has been decided. 

This was a case where a child who had been committed 
to one of the houses provided by law for its detention under 
a compulsory education law, and was taken from custody 
by a writ of habeas corpus. The question was, whether 
the law was constitutional which allowed a child to be so 
taken and sentenced without a trial by jury. The case as 
I have it is reported ; and I refer to the case as much for 
the note that is written upon the decision of Judge Redfield 
as for the case itself. The case is found in the Illinois 
Reports. I refer to 10 American Law Register, People v. 
Turner, page 336. 

The Court : That must have been decided some years 
ago. 

Mr. HuRD : No, sir : it is within ten or twelve years. 
It is in the New Series. The only place I have been able 
to find it in town is in Mr. Kent's office. Judge Thornton 
delivers the opinion. In the decision he says : 

The bill of rights declares that " all men are by nature 
\y free and independent, and have certain inherent and in- 

alienable rights, among which are life, liberty, and the 
pursuit of happiness." This language is not restrictive ; 
it is broad and comprehensive, and declares a grand truth, 
that " all men " — all people everywhere — have the inherent 
and inalienable right to liberty^ Shall we say to the chil- 
dren of the state, you shall not enjoy this right — a right 
independent of all human laws and regulations? It is 



THE STATE OF OHIO VS. THE EEV. PATRICK E= QUIGLEY, 251 

declared in the constitutioiij is higher than constitution and 
law, and should be held forever sacred. 

Even criminals cannot be convicted and imprisoned 
without due process of law^ — without a regular trial accord- 
ing to the course of the common law. Why should minors 
be imprisoned for misfortune ? Destitution of proper 
parental care, ignorance, idleness, and vice are misfortunes 
— not crime. In all criminal prosecutions against minors 
for grave and heinous offences, they have a right to demand 
the nature and cause of the accusation, and a speedy public 
trial by an impartial jury. All this must precede the final 
commitment to prison. Why should children only guilty 
of misfortune be deprived of liberty without " due process of 
law " ? It cannot be said that in this case there is no im- 
prisonment. This boy is deprived of a father's care, bereft 
of home influences, has no freedom of action, is committed 
for an uncertain time, is branded as a prisoner, made sub- 
ject to the will of others, and thus feels that he is a slave. 

Nothing could more contribute to paralyze the youthful 
energies, crush all noble aspirations, and unfit him for the 
duties of manhood. Other means of a milder character, 
other infiuences of a more kindly nature, other laws less in 
restraint of liberty, would better accomplish the reforma- 
tion of the depraved, and infringe less upon inalienable 
rights. 

It is a grave responsibility to pronounce upon the acts 
of the legislative department. It is, however, the solemn 
duty of the court to adjudge the law, and guard, when 
assailed, the liberty of the citizen. The constitution is the 
highest law ; it commands and protects all. Its declara- 
tion of rights is an express limitation of legislative power, 
and as the laws under which the detention is had are in 
conflict with its provisions, we must so declare. 

And the whole discussion is a very instructive opinion 
upon the question of the rights of the citizen, the right of 
the child, the right of the parent, and of the wrong on the 
part of the public of consigning children to this sort of 
detention without giving them the right of trial by jury. 

The Court : I suppose, in that case, he was committed 
to the reform school. 

Mr. HuRD : It was to a school about like the children's 
home is. 



252 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 

Just the very school to which these children will be 
consigned if the trustees of the board of the children's home 
say that the child that you send out there has disturbed 
the peace and morals of the rest of the children. The law 
gives to the authorities the right to send anybody to such 
a place of detention, without a trial. 

The Couet : There is no law in Ohio which allows them 
to be sent to such a school unless convicted? 

Mr. HuRD : If found without anybody to look after 
them, they can go there. In the case to which I have 
referred to-day, if a child is fourteen or fifteen years old, 
and the grand jury thinks that he ought not to be prosecuted 
criminally, and it is reported to the court, the court then, 
upon inquiry, sends him down there, and the court hold 
that to be constitutional, because it was held to be not a 
criminal prosecution. 

The Court : I was under the impression that they 
would have to be convicted before they could be sent 
there. 

Mr. Barber : They can be sent for incorrigibility. 

The Court : That is a late law — to me. 

Mr. HuRD : I think I saw myself a proceeding in the 
probate court of this county, where a boy was brought in 
there, not more than nine years old, and they wanted to 
know why he was not going to school, and he said he was 
trying to earn some money for his mother, who was sick. 
I think he was brought in there a second time. He was 
taken away by the truant officer, and as I understood it at 
the time, he was taken down to Lancaster. 

Mr. Barber : That couldn't be so. 

Mr. HuRD : I wish the Court to remember that this is a 
criminal prosecution. Here is a complaint, and an arrest, 
a trial, and a sentence after conviction, and the boy is guilty 
of a misdemeanor under the provisions of the law — all done 
by the judge or justice of the peace himself. If these be 
unconstitutional provisions, what effect do they have upon 
the balance of the law ? It is laid down in 42 0. S. that 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 253 

if it is probable that tlie law would not have been enacted 
unless these provisions liad been in it, the whole law would 
be declared unconstitutional. The object of the law is to 
educate the child and compel the parent to send the child 
to school to be educated. Here is one of the penalties that 
the law imposes upon the child for not going to school. 
There is a possible penalty for the father. Then here is 
the penalty for the child — arrest and imprisonment — a 
sentence for an indefinite time to confinement, which is the 
result of a criminal prosecution. The processes of the 
criminal Jaw are set in motion to bring about the result. 
The offences are declared to be misdemeanors. Felonies 
and misdemeanors are the classes into which all crimes and 
offences arrange themselves. This is an offence, and the 
boy is sentenced under that law to this confinement. The 
law is unconstitutional in these regards, and I say it is not 
likely that they would ever have adopted this law unless 
they intended that these penalties should be enforced. 
For, unless you can reach the child who is to be educated, 
and the father, upon whom the duty is imposed to educate 
the child, the law fails to accomplish its purpose ; it is a 
necessary part of the whole legislative plan relative to 
compulsory education. I don't see how you can separate 
these provisions of the law from the rest of the law, and 
these provisions being unconstitutional, I say it makes 
the poison of unconstitutionality run through every section 
and word of it. 

My distinguished client said, the other day, that always 
in matters of truth revelation and reason would be found 
meeting. The best illustration of it, I think, is found in 
an article by Herbert Spencer, in the last Popular Science 
Monthly, to which reference was made by Judge Dunne, 
and from which I shall read a few words : 

" But surely, the society in its corporate capacity, guided 
by the combined intelligences of its best members, may 
with advantage frame a conception of an individual nature 
best fitted for harmonious industrial life, and of the dis~ 



254 THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 

cipline calculated to produce such a nature." In tliis plea 
there is tacitly assumed the right of the community, through 
its agents, to impose its scheme — an assumed right, quite 
inconsistent with the conclusions drawn in foregoing chap- 
ters. But not here dwelling on this, let me ask what fit- 
ness the community has for deciding on the character to 
be decided, and for devising means likely to create it. 

Whether the chosen ideal of a citizen, and the chosen 
process for producing him, be good or bad, the choice in- 
evitably has three implications, any one of which con- 
demns it. 

The system must work toward uniformity. If the meas- 
ures taken have any effect at all, the effect must in part be 
that of causing some likeness among the individuals : to 
deny this is to deny that the process of moulding is oper- 
ative. But in so far as uniformity results, advance is re- 
tarded. Every one who has studied the order of nature 
knows that without variety there can be no progress — 
knows that, in the absence of variety life would never have 
evolved at all. The inevitable implication is that further 
progress must be hindered, if the genesis of variety is 
checked. 

Another concomitant must be fche production of a pas- 
sive receptivity of whatever form the state decides to im- 
press. Whether submissiveness be, or be not, part of the 
nature, which the incorporated society proposes to give its 
units, it cannot enforce its plans without either finding or 
creating submissiveness. Whether avowedly or not, part 
of the desired character must be readiness in each citizen 
to submit, or make his children submit, to a discipline 
which some or many citizens determine to impose. There 
may be men w^ho think it a trait of high humanity thus to 
deliver over the formation of its nature to the will of an 
aggregate, mostly formed of inferior units. But with such 
we will not argue. 

One further .necessary implication is that either there 
exists no natural process by which citizens are in course of 
being moulded, or else that this natural process should be 
superseded by an artificial one. To assert that there is no 
natural process is to assert that, unlike all other beings, 
which tend ever to become adapted to their environments, 
the human being does not tend to become adapted to his 
environment — does not tend to undergo such changes as 
fit him for carrying on the life which circumstances require 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 255 

him to lead. Anyone who says this must say that the va- 
rieties of mankind have arisen without cause ; or else have 
been caused by governmental action. Anyone who does 
not say this must admit that men are in the course of being 
naturally adjusted to the requirements of a developed social 
state; and if he admits this, he will hesitate before he 
asserts that they may be better adjusted artificially. 

And then, one more sentence : 

Yet it needs but to go back to the remote past, when 
industrial life was held contemptible, and virtue meant 
fortitude, valor, bravery ; or to the less remote past, when 
noble meant high-born, while labor and villain were equiv- 
alents ; or to the time when abject submission of each grade 
to the grade above was thought the primary duty; or to the 
time when the good citizen of every rank was held bound 
to accept humbly the appointed creed, — to see that the 
characters supposed to be proper for men were unlike the 
characters we now suppose proper for them. Nevertheless, 
the not- very-wise representatives of electors who are mostly 
ignorant, are prepared, with papal assumption, to settle the 
form of a desirable human nature, and to shape the com- 
ing generation into that form. 

I say, as my client said, that upon this proposition of 
compulsory education, revelation and reason stand together. 



256 THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 



AEGUMENT OF JUDGE EITCHIE FOE DEFEND- 
ANT. 

If Your Honors please : The time at my command will 
not enable me to make any extended argument, but I will 
content myself with calling attention to some points on 
which we rely that have not been alluded to in the argu- 
ment, and which fully appear in the record, the first of 
which that occurs to me is, that we maintain that Father 
Quigley did not sustain to this school the relation of either 
principal or teacher. His duties there were simply those 
of a priest of the parish, having spiritual duties to per- 
form, and the only instructions that he gave were spiritual 
instructions ; that he had no command over, or supervision 
or control over, either the school books or the modes of 
education. The studies to be pursued and all that, the rec- 
ord shows, was advised and determined by a board other 
than and different from Father Quigley. 

The school law, itself, under discussion here, Your 
Honors, mentions and recognizes three classes of parties 
having supervision over the schools different from the 
board of education, and these are : the superintendent, the 
principals, and the teachers of the schools. They are all 
three mentioned in the act, and we submit that whatever 
the record discloses as being the duties of Father Quigley 
to this parish school, they were not that of a principal or 
teacher ; but if they were that of any of them, they were 
that of a superintendent, and that the law does not require 
a report' from the superintendent of a school. In other 
words, we insist that the word " principal " here is used in 
its special or technical sense as applied to an institution of 
learning — the head instructor, or principal instructor, or 
the head of a corps of teachers. Enough upon that point. 



THE STATE OF OHIO VS. THE RET. PATRICK P. QUIGLEY. '^O ( 

The next thing that occurs to me — ami, as I said, I am 
not going to argue, only to call attention to these matters — 
is, that we submit that Father Quigley in this case, even if 
required to report, could not be held guilty of a failure to 
make the report named in the indictment, to wit, April, 1890, 
because the law reguires that blanks for that purpose shall 
be furnished and supplied to him by the clerk of the board 
of education. The record in this case discloses that no 
blanks were furnished before the 25th day of April, the very 
day that this amended law took effect. That left him five 
days in the month of April in which he was required to 
make his report. The law requiring the rejDort to be made 
during the last week of April impliedly gives to the prin- 
cipal or teacher the entire week in which to make out that 
report, and the blanks shall not be furnished to him before 
the beginning of the week."^ 

Another point which Mr. Hurd has referred to, and I 
wish to call the attention of the Court to it a little more 
specially, is, that by the provisions of this law it was not 
to be of general operation nor to be enforced throughout 
the state except on certain conditions and provisions, viz., 
that if there was not seating capacity in any school disti'ict 
to accommodate all the children required to attend school 
under section 9 of the law, the law should not be in 
operation in that school district. I go further- than my 
brother Hurd in that regard : I insist that it was a j^art of 
the business of the State, as they were seeking to enforce 
this law and to apply its penalties to this defendant, to 
show affirmatively, as a j^art of their case, that the law was 
in operation in this school district. TVhile it provides that 
under certain conditions it shall not apply nor be applicable 
at all, I insist that it was the duty of the state to show 
affirmatively, and in chief, that those conditions here did 
not exist, and that the law was therefore in operation. So 
far from that, there was no proof here at all upon that 
point, except what we offered ourselves, and that p)roof 
* The blanks were offered April 28th and furnished onl}^ oq May 2d. 



258 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIQLEY. 

shows, I think, that there was iu round numbers something 
like 4000 chihlren within the ages of eight and sixteen that 
there was no provision made for in the schools at all. No 
seating capacity was afforded to these, and therefore the 
law was not in operation in this district. 

Another question, which will occur to the Court ; In de- 
termining the seating capacit}^ of the district, are we to 
superadd to the seating capacity of our public schools the 
seating capacity of the private or parochial schools, and 
include them all as the seating capacity of the school dis- 
trict ? I think that a fair interpretation of this law would 
require us to say that in so far as the state is seeking to 
enforce this law in districts where it has sufficient seating 
capacity afforded by the state, by the public, at the public 
expense — if that be so, then, clearly, this law was not in 
operation at this time in the city of Toledo. The question, 
if your Honors please — Mr. Hurd has perhaps a brief pre- 
pared upon that subject ; he said he had — upon the right 
of the state to demand a struck jury in the trial of this 
case. We contend that under the law as it now stands, the 
state has no such right. I have in my hand a matter pre- 
pared by counsel, that I will not read now, nor dwell upon 
at all, except to say that I will submit it to your Honors, 
if you desire to see it, when you come to consider this case 
at chambers or in your consultation-room. It contains a 
reference to all the statutes of Ohio upon the question of 
struck juries. It contains a reference to the decisions of 
our Supreme Court upon that question, and points out the 
distinction between the law now and when the court held 
that a struck jury was demandable in criminal cases as 
well as in civil cases. I would not now have undertaken 
to address the Court at all were it not that I desire to pre- 
sent for the consideration of this Court, before our friend 
replies, a question that I had the honor to submit to Judge 
Pugsley, upon the motion in arrest of judgment and for a 
new trial, and it, in my judgment, has some weight. Per- 
haps it occasioned the Judge some degree of contemplation 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 259 

and reflection, but it did not receive, at least at his hands, 
the consideration which I think it is entitled to, and that is 
the question : Does the penalty provided for in section 13 
of this act apply or attach to the principals and teachers 
of schools for a failure of duty imposed on them by the 
11th section of the act ? I will read, if the Court will per- 
mit. Section 11 of the act imposes a duty on all principals 
and teachers of all schools, public and private, to make 
the reports therein required. But that section imposes no 
penalty for an omission of that duty. About this there is 
no room for disagreement. It does not even declare that 
it shall be an offence or misdemeanor not to make the 
report. This section, standing alone, contains no sanction, 
penalty, nor obligation, except the declaration of a mere 
naked duty to make the report. Without reference to sec- 
tion 13 it would not be claimed for a moment that any pen- 
alty or punishment could be imposed for a failure to make 
such a report. So that the whole question resolves itself 
into this : Does the penalty provided by section 13 of the 
act, under the language and limitations of that section, 
attach and apply to teachers and principals for omitting 
their duty under section 11 ? To say the least, this is a 
very grave question. It stands at the very threshold of 
this case, and requires the most serious and careful consid- 
eration. It will not do to say that the provisions and pen- 
alties of section 13 of the act apply to all persons and 
ofiicers mentioned in the act who neglect the duty imposed 
by the act. School youths and the parents, guardians, and 
employers of such have all duties imposed on them by the 
act ; but for the neglect of any such duties by any or all of 
these classes of persons a different penalty is prescribed, 
a different remedy provided, and it is to be enforced in a 
different manner and by a dift'erent procedure than that in 
section 13. Your Honors will see in sections 2 and 3 as 
to the penalties against employers ; in section 8, as to the 
penalties against parents and children. So that all these 
classes of persons, viz., school youth, their parents, guar- 



2 GO THE STATE OF OHIO VS. THE JIEV. PATRICK F. QUIGLEY. 

dians, and employers, are all excluded from the operation 
of section 13, and are not included in tlie category of that 
section, as " any person or officer mentioned in this act." 

But section 13 does not purport to apply to all "per- 
sons or officers mentioned in this act." It has this addi- 
ction al clause and qualification : '' and designated as having 
certain duties to perform." Now we have seen that this 
section cannot and does not apply to school youth, their 
parents, guardians, or employers, although they are all 
"mentioned in the act and designated as having certain 
duties to perform ;" because the penalties against them 
are prescribed by other sections of the act, and to hold 
them subject to these penalties also would be to subject 
them to double punishment. 

The reasoning thus far has been to show that the 
penalties of section 13 do not apply to all persons or offi- 
cers mentioned in the act, and that the succeeding clause, 
*' and designated as having certain duties to perform in the 
enforcement of any of its provisions," is a material, essen- 
tial, and qualifying limitation, that cannot be diminished 
nor rejected as surplusage. That there was a purpose 
and design in fixing this limiting and qualifying clause, 
and that it is only for neglecting to perform " such duties, 
this is a designated duty in the enforcement of any of its 
provisions that the penalties of section 13 attach. In 
other words, that section 13 applies, as its language un- 
qualifiedly imports, to " persons or officers mentioned in this 
act, and designated as having certain duties to perform in 
the enforcement of any of its provisions." Webster defines 
*' enforce" as follows : " To compel, to constrain, to force, 
to put in execution, to cause to take effect, as to enforce 
the laws." To enforce the law is something more and 
different than to obey the law. To enforce the law is an 
exercise of power or authority. It is an executive, police, 
or administrative act. The duty is general upon all to 
obey the law, but there is no such general duty on all to 
enforce the law. Take the case of children attending 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 261 

school under this law : they obey the law ; but can it be 
said there is any duty imposed on them to enforce the 
law? In the interpretation of statutes every word and 
phrase is, if possible, to be given its full and appropriate 
force and meaning. It is not to be inferred or presumed 
that the legislature made use of meaningless or unneces- 
sary words or phrases. It is certainly not to be presumed 
that they added a phrase, not to express their meaning, 
but to defeat, as the state here contends, the very mean- 
ing intended. The state asks the Court to interpret the 
law as if the phrase after duties, " in the enforcement of 
any of its provisions," were entirely left out. We insist 
that the law should be read as it is, giving force and effi- 
cacy to all its parts, words, and phrases, and that the 
words here used, being of common and popular use, shall 
be taken and read in their natural, plain, obvious, and 
ordinary - signification. The legislature must be under- 
stood to mean what it has clearly expressed — and this 
excludes construction. What does the common, ordinary 
mind understand by the common, ordinary words, " to 
enforce the law" ? Is it merely to obey the law ourselves? 
Or is it to constrain and compel others to obey the law ? 

When, in 1856, the National Party, as it was then 
called, made this simple declaration of principles, "The 
Union, the Constitution, and the enforcement of the Law," 
they meant and declared something more than the mere 
duty of obeying , the law themselves. They meant and 
declared the right and necessity of compelling others to 
obey. And when, in years later, a million of men sprang 
to arms, under the proclamation of Lincoln, to enforce the 
law, was it only that they should obey the law themselves, 
or was it to require and compel others to yield obedience 
to the law? Revolve this question, examine and apply 
and illustrate it as you will, I insist that there is a vast 
difference between a duty to obey the law and a duty to 
enforce the law : the one is a common duty, resting upon, 
all ; the other is a special duty, imposed upon a few. 



:i63 THE STATE OF OHIO VS. THE KEV. PATRICK F. QUIGLEY. 

And here the question naturally arises, in the language 
of section 13 of the act, who are " the persons or officers 
mentioned in this act and designated as having certain 
duties to perform in the enforcement of any of its pro- 
visions"? I answer, not the teachers or principals of 
schools. Their whole duty is presented by section 11 of 
the act, and that duty is to obey the law by making the 
reports required at the time and in the manner required. 
They have nothing whatever to do in enforcing the law — 
in putting its machinery into operation, or in compelling 
or requiring either parents, children, employers, boards of 
education, their clerks, superintendents or truant officers, 
or even other teachers, to comply with the law, or to 
enforce upon them its penalties if they do not comply. 

But there is no room for doubt as to who are *' the per- 
sons and officers mentioned in the act, and designated as 
having certain duties to perform in the enforcement of any 
of its provisions." Parents, guardians, and employers are 
designated in the act as having certain duties to perform in 
che enforcement of some of its provisions. But we have 
seen that their omission of such duties is otherwhere pro- 
vided for in the act, and that they do not come under the 
penalties of section 13. AVho, then, remains ? The answer 
is plain, simple, and unavoidable. The boards of educa-- 
tion, the clerks of the boards of education, the superin- 
tendents of schools, and the truant officers appointed hj 
the boards. These are the persons and officers mentioned 
in this act, and designated as having certain duties to per- 
form in the enforcement of its provisions. Upon them is 
cast the whole duty of putting the machinery of this law 
in motion, of seeing that the law is obeyed, of enforcing 
the law, of compelling obedience, and it is against their 
neglecting to perform such duties that the penalties of sec- 
tion 13 of the act are directed. 

This is manifest, first, because no other penalties are 
provided against these classes of persons, if they neglect 
their duty under the law. Second, because they are the 



THE STATE OF OHIO VS. THE EEY. PATRICK F. QUIGLEY. 263 

only classes of persons named in the act to whom the 
language of section 13 can properly apply. Third, be- 
cause the very language of the act, in deiming the duties 
of these classes of persons, is the same identical language 
used in section 13 as indicating to whom the section ap- 
plies. Thus we have, in section 6: " The board of educa- 
tion of said cities shall be required to employ one truant 
officer to assist in the enforcement of this act " (that is, to 
assist the board of educ xtion in the enforcement of this 
act), " to be vested with police powers, and shall be author- 
ized to enter factories, workshops, stores, and all other 
places where children may be employed, and perform such 
other services as the superintendent of schools or the 
board of education may deem necessary to the preserva- 
tion of the morals and good conduct of school-children, 
and for the enforcement of this act. . . ." So that the whole 
machinery of the law, its enforcement, and whatever may 
be deemed necessary to that end, is committed to the board 
of education, the superintendent of schools, and the truant 
officer appointed to assist them in the enforcement of the 
law. 

Again, by section 8 of the law the truant officer, who is 
to assist in the enforcement of the law, is made the agent 
or servant, and subject to the orders and requests, of the 
board of education and superintendent of schools, as to 
truant and disorderly juvenile persons. 

And again, in section 9, it is made " the duty of officers 
empowered or appointed under this act to assist in the 
enforcement thereof, to institute, or cause to be instituted, 
proceedings, etc." 

In view of these provisions of the law, and the identity 
and analogy of the language used, can there be any doubt 
as to what is meant by the enforcement of the provisions 
of the act ? Or as to the parties on whom the obligation 
of its enforcement is cast? Can there be any doubt but 
that "the persons or officers mentioned in this act, and 
designated as having certain duties to perform, in the en- 



Ji04 THE STATE OF OHIO t'.v. THE KEV. PATRICK F. QUIGLEY. 

forcement of nuy of its provisious," under section 13, are 
tlie same persons and officers previously mentioned in the 
act, and designated as having the same duties to perform in 
the enforcement of the act, under sections 6, 8, and 9 ? 
Here, then, are these classes of persons and officers to whom 
the penalties of section 13 clearly and undeniably apply, 
coming squarely within the very letter, spirit, and language 
of the section, as well as the other sections of the law, so 
that the section cannot fail, or be inoperative for want of a 
subject to operate upon ; and what right have we to extend 
the application to another class of persons not within its 
scope or language — a class of persons which the definition 
of the section, and the very language employed manifestly 
and clearly excludes ? 

" The words of a statute, if of common use, are to be taken 
in their natural, plain, obvious, and ordinary signification, 
and if a contemporaneous construction by the legislature 
of the same words can be discovered, it is high evidence of 
the sense intended." I quote that from Sutherland on 
Statutory Construction, and 46 0. S. 234. So that we have 
the definition of the words used, their common and ordi- 
nar}^ meaning, their popular sense, their contemporaneous 
use and sense in the same statute, and every rule and every 
canon of construction, all leading us to the same conclusion 
— that the language in section 13 does not include teachers 
or principals of schools. 

There is another principle that leads to the same con- 
clusion. I refer to Sutherland on Statutorj^ Construction, 
sees. 325 and 327. It is a principle that " when a statute, 
defining an offence, designates one class of persons as sub- 
ject to its penalties, all other persons are deemed to be ex- 
empted. As a general rule, the exclusion of one subject or 
thing in a statute is the inclusion of all other things^" And, 
if your Honors please, may I not, wdth propriety, urge upon 
the Court also the interpretation given to this statute by 
the pleader in drawing this indictment ? He seems to have 
construed it in the same way; for he did not content him- 



THE STATE OF OHIO VS. THE KEY. PATKICK F. QUIGLEY. 265 

self witli the statement tliat it was the duty of the defend- 
ant to make the report as required by section 9 of the act, 
but he charged that the defendant was " one of the persons 
named in the act, and designated as having certain duties 
to perform in the enforcement of the provisions of the act." 
So that he deemed this allegation material, and proof of it 
essential, and, in the absence of such proof, judging now 
by his judgment then, the motion for a new trial ought to 
have been allowed. 

We have thus far been considering the rules of construc- 
tion, and the authorities bearing on that subject, as applied 
to remedial statutes, where a liberal construction and a lib- 
eral enlargement is not only permitted, but required. But 
we shall find that in the interpretation of penal statutes a 
far different rule obtains. Here strict construction is the 
rule. It must be read without expansion. It must be con- 
fined to the strict letter of the law, whatever may have 
been^ the intention of the legislature, and to such subjects 
and applications as are clearly within its e55:press terms. 
The principle which I have just announced is fully con- 
firmed by Sutherland on Construction of Statutes, section 
347, and following. So I insist and urge that, this being 
a penal statute, it shall be construed as penal statutes are 
required to be construed ; that we are not at liberty to 
guess at what was the meaning of the legislature, nor to 
supply their omissions. Our inquiry here is : What have 
they said ? — not. What did they intend ? And we are not at 
liberty to extend the penalties of this law to a class of per- 
sons not within the express letter of the law. If there is 
an omission or oversight in the law, that the Court here has 
no power to heal. Let the law be amended and corrected, 
if that is necessary, by the legislature that made it, but let 
there be no violence done to those established rules of con- 
struction, to widen, broaden, change, or extend the language 
of this law, so as to bring the defendant within its extended 
terms. We do not know that the legislature intended to 
provide any penalties for principals or teachers neglecting 



2(36 THE STATE OF OHIO VS. THE llEV. PAJRICK F. QUIGLEY. 

their duty. "We do know that they have uot done so by 
the law as it stands. 

Mr. Barber, for the state, spoke as follows : 
If your Honors please : John Hancock, who began the 
enforcement of this law upon the part of the State of Ohio, 
by issuing a circular containing the law in advance of its 
publication by the authorities of the state, made a little 
comment upon it, that it was the most important legislation 
that had ever been passed in the State of Ohio. It is cer- 
certainly the most important legislation, from many stand- 
points, of any school legislation anywhere on the American 
continent. It is a law that might as well be understood in 
the start. It is a law that I think we all concede does not 
interfere with the religious views of any person, or attempt 
in any way — in any manner — to restrain or constrain any 
conscience or any religious conviction. The truant officer 
*is required, not to run children into the public schools ; he 
is required to see that children go to some school — some 
private, or parochial, or public school ; and if he finds an 
incorrigible boy who belongs to a parochial school playing 
truant within the meaning of the law, and he should run 
that boy into the public school, he violates the law, both 
in its letter and in its spirit. So that really the only ques- 
tion, it seems to me, as to whether this law is unconstitu- 
tional or not, is not whether any private or inherent or 
natural right is violated, but whether the Legislature of 
Ohio had the power to enact a law— the law of compulsory 
education — or any law of compulsory education. Now the 
law of compulsory education has been upon the statute- 
books of Ohio since 1877. It has been a dead letter for 
the very reason that these provisions that have now been 
put into the law for its carrying out and execution were not 
put into it on the start. There is being published by the 
Bureau of Education of the United States of America — I 
suppose it is out by this time — a work, under the super- 
vision of the United States Commissioner of Education, 
giving the history of the enactment of .compulsory educa- 



THE STATE OF OHIO VS. THE EEV. PATRICK E. QUIGLEY. 267 

tion laws in this country and of their enforcement ; and it 
appears from the advance-sheets of that work already 
that there has been enforced in certain parts of New Eng- 
land, for the last one hundred years, a compulsory educa- 
tion law. Compulsory education is enforced in Germany, 
Prussia, and other countries, and yet for the first time (I 
am going to make a pretty broad assertion), for the very 
first time in this country, has the constitutionality of a 
compulsory education law — directed at its compulsory feat- 
ures — been called in question. For during this summer, 
at my leisure, I have looked into every decision of every 
court of Ohio, where any school legislation of any kind 
was ever called in question, and I am able to state to your 
Honors that there is not printed on the pages of any of the 
reports (and I guess I have seen them all — all that the Di- 
gest gives any light upon) any decision of any court upon 
any school legislation, of any kind whatever — not only on 
compulsor}^ education, but of any kind whatever — where 
they have laid down rules for the regulation of schools, the 
expenditure of money for schools, or the requirements of 
courses of study, or the requirements and rights of the 
board of education and principals and teachers to enforce 
the rules of the school — in all those questions not a single 
one has been declared unconstitutional, not a single law ; 
and I cannot find anywhere, in any book — and you may 
presume safely that it would be presented to you if it 
could be found — any decision of any tribunal of any coun- 
try where ccftnpulsory education has been declared uncon- 
stitutional by any court. Now we have got pretty broad 
ground to stand upon, without any argument whatever, for 
their attack. We stand here well grounded right in the 
start of this case. 

I have brought here an article from the gentlemen's 
own camp — the learned Judge who has spent so much time 
upon the constitutionality of the law, both in this court and 
the court below, and who wishes to argue that this law is 
unconstitutional because it interferes with natural and in- 



268 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

alienable rights — I wish to show from his own authorities 
that he looks up to and that he quotes from that his posi- 
tion is entirely ignored and repudiated by the highest 
lights and the highest authorities of his own church. 
Thomas Arnold, Cardinal Manning, and Cardinal Newman 
all countenance this statement of the law on this subject : 

The state may reasonably require that all its citizens 
should early receive that mental and moral training which 
may dispose them to restrain anti-social passions, to obey 
the laws, and by industry to promote the public and their 
own welfare. 

The state may reasonably require. 

But in one point the power of the state to educate has 
a narrower limit than that of the parent ; for the parent 
can teach denominational doctrines, while the state can 
teach only " fundamental and universal morals," those 
facts and principles in which all Christians are substan- 
tially agreed." 

I am reading from the authorities which the gentleman 
himself relies upon. 

Thus the right of the state to give the mental and moral 
training to tit children for the duties of society and of civil 
life accords with the American constitutional principle as 
declared by Webster when he said : " The power over edu- 
cation is one of the powers belonging essentially to the 
government ; it is one of the powers the exercise of which 
is indispensable to the preservation of society; it is the 
duty of self protection." On this point Cardinal Manning, 
Cardinal Newman, and the learned editors of the Roman 
Catholic Dictionary are in perfect accord with the great 
and good men of the world, however widely they may differ 
on other points, for they hold that the state is bound to 
see that its children are instructed in those pure principles 
of morality which are universally recognized. 

Here is another article from their camp. It is from 
The Month, published in London, a Catholic publication. 
It comments upon the same authorities upon which Judge 
Dunne so much relies in his attack upon the constitution- 



THE STATE OF OHIO VS. THE EEV. PATEICK F, QUIGLEY. 269 

ality of this law in a whole printed Commercial — he relies 
upon the interpretation of the law as given by the Fathers 
and by the Holy Father in his Encyclical, and I just wish 
to submit this as a part of my argument, to show that it is 
not all his way. This is what the editor of The Month 
says : 

Free education, in the form in which it has been intro- 
duced in the present act, is generally admitted to be a step 
in the direction of greater interference on the part of the 
state in the case of its young citizens — a further encroach- 
ment upon parental responsibility. This raises the wider 
question of the limits and the measure of interference that 
the state has a right to exercise in the family. These 
limits have been clearly defined by the recent Encyclical 
of the Holy Father. The state can step in and compel the 
parents to give their children what is due to them, but it 
can go no further. Paternal authority may neither be 
abolished nor absorbed by the state. 

The state has the right to say to all : " You shall send 
your children to schooL" Quite apart from the bad effects 
of idleness and of the streets, it can say : *^ If you do not 
see that your children receive a certain amount of educa- 
tion" (this is quoted from the Encyclical) "you forfeit some 
portion of your paternal rights, and I have to supplement 
them. I can, and I ought, to step in and fight their battle, 
just as I can and ought to step in if you ill-treat them or 
starve them." In all this the modern state does not go 
beyond its right or its duty. 

He goes on to say now : 

We must, however, remember that the state forfeits its 
right to this interference if the cultivation that it en- 
forces is a non-religious cultivation. It has no right to 
require of any Catholic parent that he shall send his child 
to a school where the education is not religious. If in any 
town there is no Catholic school, a parent is within his 
rights if he prefers to keep his child at home. 

But this law complies with that view of the duty of the 
state and the right of the state. It provides that a child may 
be instructed at home ; it provides that it maybe instructed 
in any school ; the sole purpose of the law, if you will read 



270 THE STATE OF OHIO VS. THE KEY. PATEICK F. QUIGLEY. 

it, take it altogether, is to require every person to read and 
write the English language, and it does not make any dif- 
ference how they get it, and if that law is enforced, as it 
can be and as it will be, we shall all live to see a generation 
of people who can all read and write — unless born idiotic or 
imbecile — and they are excused from that. If the parent 
is dependent upon the earnings of the child, that is pro- 
vided for. 

Now, the best argument for the constitutionality of the 
law that I know of — the most terse and the ablest argument 
for the constitutionality of the law — is right in the charge of 
the court below, itself, where the constitution is cited and 
the principles involved are stated j and you will find that the 
law of Ohio is stated in this quotation from the Supreme 
Court of Ohio : 

It is left to the discretion of the general assembly in the 
exercise of the general legislative power conferred upon it, 
to determine what laws are " suitable " to secure the organi- 
zation and management of the contemplated system of the 
common schools. 

The constitution says that common schools shall be 
forever encouraged and protected. It is conceded by the 
gentlemen upon the other side that the constitution does not 
say that the legislative power of the constitution is vested 
in the general assembly, but that the legislative power of 
the people of Ohio is vested in the general assembly, and 
that unless there is an express prohibition — express pro- 
hibited power — the legislature have the right to pass any 
statute whatever. 

Mr. HuED : Or by implication. 

Mr. Baebee : Or by necessary implication. There is nc 
constitutional prohibition cited stating that the legislature 
has no right to pass a compulsory education law — none what- 
ever. In the trial below the gentlemen argued, as they do 
now, that a parochial school is not a private school. I am 
not going to say anything about that. We have got to go 
out of court — if within the meaning of this act a parochial 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 271 

sciiool is not a private scliool, we will go out. If my asso- 
ciate thinks there is anything in this point, he may devote 
to it all the time he chooses. The law as it exists says, 
" all schools, public and private " — all principals of all 
schools, all teachers of all schools, and you will find that 
universal expression here : 

That all children between the ages of seven and fourteen 
years who are habitual truants from school. 

That includes all children; it don't make any difference 
what school they attend. 

So far as there is anything in his point, that under sec- 
tion 363 and the construction of that for fifty years, as 
having any bearing upon this act, I would say that it proves 
too much for him, if it is going to be followed. The state 
school commissioner has never taken information from 
private schools, as defined by the gentleman this morn- 
ing : it is only private seminaries and private schools of 
learning that are quasi-public. No limited school started 
np in any town or village was ever taken charge of, or any 
report required of them; and if it did, in that section 363 
there was no such meaning as he argued. 

Section 14 provides : 

Any provisions of statutes in force when this act takes 
effect, which conflicts with any provisions of this act, shall, 
to the extent it is inconsistent with the latter, and not 
otherwise, be held to be superseded by this act. 

The intent of that act is to give all children of a certain 
age, not idiotic, or excused, as provided for there, an educa- 
tion — not an education in the public sphools, but an educa- 
tion, that is the aim and intent of the act. I have nothing 
more to say in regard to that 

In regard to the second point. We had a great attack 
below — weakened here somewhat — about this question of 
a struck jury. Now section 5185, if your Honors please, 
provides for a struck jury. 

Any party to an action may demand a struck jury for 



273 THE STATE OF OHIO VS. THE EEV. PATKICK F. QUIGLEY. 

the trial of an issue of fact therein, bj filing a precipe with 
the clerk ^ thereupon the clerk shall proceed, etc. 

"Any party to an action." And how any one can chal- 
lenge that act in connection with the other provisions of it, 
making it applicable in a general way to both criminal and 
civil cases, I cannot see, because it was preceded by a pro- 
vision applying to all kinds of jurisdiction, grand jury and 
petit jury; and then in the Code of Criminal Procedure we 
have provision for the summoning and impanelling being the 
same, except in capital cases. It would seem that any- 
thing can be attacked and plausibly assailed when you as- 
sail such unambiguous language as that; and I think it would 
be just as plausible to attack that, as to attack many of the 
sections of this law which they have done, — just exactly as 
plausible. In Smith and Benedict's Revision there are many 
cases cited under that statute. It has been held by the 
Supreme Court of Ohio that the defendants in such cases 
have as a matter of right, and it has been held by the Cir- 
cuit Court of Cincinnati that under this law a struck jury 
may be demanded by either party. One of your Honors was 
attorney in a case of Ohio v. Watkins, tried some years ago 
by a struck jury. You may recollect whether there was 
any question under it or not. 

Mr. EiTCHiE : There was no question made upon it, I 
suppose. 

Mr. Bakbee : There are decisions of the supreme court 
that the state may have a struck jury ; but my friend 
Judge Ritchie says that the law was a little different there 
from what it is now. I have not gone into that question, 
and I don't wish to discuss it. The Circuit Court of Cin- 
cinnati has held that a struck jury is demandable. 

The next point in this record which the plaintiff has 
made is about that provision of the law that says that this 
l^w shall not be applicable where there is not sufficient 
seating* capacity. That is section 9. Your Honor will 
notice that it is a separi*to section, and reads this way : 



THE STATE OF OHIO VS. THE KEV, PATRICK F. QUIGLEY. 273 

Provided, that this law shall not be operative in any 
school district where there are not sufficient accommoda- 
tion to seat children compelled to attend school under the 
provisions of this act. 

Now the first position of the state in regard to that 
suggestion is this : that the law is not operative where by 
compelling children to attend school you cannot furnish 
them seats to sit down in. It is a well-known rule of im- 
memorial practice and procedure and pleading, that when 
any exception like this, not a part of the offence — not one 
of the elements of the offence — not one of the elements of 
the definition of the offence, that it need not be alleged in 
the indictment; and it need not be proven on the part of 
the state upon the trial of any case. Now that is decided 
directly and squarely by the Supreme Court of Ohio, and 
yet these men come up here and overlook these decisions 
and never refer to them, and claim that it was a part of the 
duty of the State of Ohio to prove that there was sufficient 
seating capacity in the school district of the city of Toledo, 
as a part of our case ; that we should make it a part of the 
:illegations of the indictment that there was not — or that 
there was, rather — to prove affirmatively that there was 
seating capacity and accommodation for all they were to 
compel. Now, we did do so, and the record shows it. But 
I don't want any such law laid down, because it is error 
against us, and we may have other trials in this matter, so 
I have cited upon that Yol. 5 of the Circuit Court Eeports, 
283. You will find it in the decision of the Circuit Court 
of Cincinnati, in the Bulletin of May 11, 1891. That de- 
cision was in a state case where the defendant was con- 
victed under section 6822 of the Kevised Statutes : 

Whoever intentionally and without malice points or 
aims any firearm at or towards any person, or discharges 
any firearm so pointed or aimed, or maims or injures any 
person by the discharge of any firearm so pointed or aimed, 
shall be fined not more than one hundred dollars, or im- 
prisoned not more than one year, or both. This section 



274 THE STATE OF OHIO Vd. THE KEV. PATRICK F. QUIGLEY. 

shall not extend to any ease when firearms are used in self- 
defence, or in the discharge of official duty, or in case of 
justifiable homicide. 

Now they held in that case that it was not necessary to 
allege in the indictment any of those exceptions, it not 
being a part of the offence, and that it was not necessary 
for the state to prove it. 

And in Stanglein vs. State, 17 0. S. 453, you will find 
the same point decided : that is, they wish — that is, if the 
defendant wishes, in this trial, to escape the penalty which 
the law provides, he must show that it comes within the 
exception, or that the law is not applicable in the territory 
in which he has set up his defence of it. Undoubtedly 
that is the correct practice and the correct procedure under 
that section. But the record shows, your Honors, here 
that at the very time he refuses to make out these reports, 
and I will not stop to dispute upon the question — because 
I will turn to it if it is disputed — that there were two 
thousand vacant seats in the public schools of this city 
during that month — that there were two thousand vacant 
seats in the public schools in this city district, as ascer- 
ascertained by taking thetotal enrolment of the public 
schools and the total seating capacity which the record 
shows, and that the total daily attendance in the public 
schools during the month of April, in which the of- 
fence was committed, was eight thousand, and the seat- 
ing capacity eleven thousand, in round numbers — three 
thousand vacant seats, based upon the daily attendance. 
But that would not be fair, perhaps. The record also 
shows that there were school-rooms in the city that hadn'i 
been seated — new rooms, unopened, not seated because 
there hadn't been a demand for them. 

In regard to the jurisdiction of the court ol common 
pleas, I have on my part simply to say that I have con- 
sidered that question pretty carefully, and I am unable 
to state it any more forcibly or nearly so well as is done 
by the court below and in the overruling of the motion for 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 275 

a new trial, in which he argued together the questions most 
strenuously argued by Judge Eitchie and the question of 
jurisdiction. And, to escape the argument of the Judge 
below, the gentleman has varied a little the attack made 
in the court below, and he cites from a decision which I 
have not in my hands, of the trial below, in which your 
Honors will notice that the offence, or the provision of the 
statute in that case, provided a different remedy and a 
different penalty. 

When this law went into fojfce and effect January 1st, 
1889, it defined the offence in the words that it stands 
to-day, and prescribes the punishment that exists to-day, 
and there it is conceded that the court of common pleas 
had jurisdiction of the offence. The statute of 1890 
adopted the language word for word, creating it an offence, 
and prescribing the penalty, but said in closing, " Justices 
of the peace, mayors, and probate judges shall have juris- 
diction of the offences defined in this act, and their judg- 
ment shall be finaL" 

Now it is held that the addition of those words gave 
the probate court exclusive jurisdiction of this offence and 
took it away from the court of common pleas. Down in 
the probate court — we have got a case down there.* These 
gentlemen got down there, and they, went to arguing right 
the other way. They maintained their position in the 
court of common pleas that the common pleas court had 
no jurisdiction, and they told the probate court down 
there that he had no jurisdiction whatever, and they argued 
the whole day. 

Mr. Eitchie : You are mistaken. 

Mr. Barber : Didn't you claim in the probate court 
that this court had no jurisdiction? 

Mr. HuRD : We insisted that there were certain provi- 
sions of the act that forbid him to exercise jurisdiction, in 
the way you brought the case up. 

*They arrested me again June 2, 1891, and took me before Probate 
Judge Millard, to be before him prosecuted under the Truant Law. It is 
to this prosecution that reference is here made. 



276 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 

Mr. EiTCHiE : That tlie probate court had no power to 
hold an examination as an examining court. 

Mr. Barber: As I understood the proposition of Mr. 
Hurd, below, it was that the probate court had no juris- 
diction of this offence because the legislature hadn't cor- 
rectly conferred it. 

Mr. Hurd : We insisted that your proceeding there was 
not in proper form. 

Mr. Barber : I know you did, but that was because the 
information was not filed before the affidavit. I want to 
state your position on the jurisdiction of the probate court. 
I am willing to waste my time, if I can get what your posi- 
tion was. 

Mr. EiTCHiE : It was this : Mr. Hurd's position there 
was, and my position was, that the probate court could not 
hold a preliminary examination as an examining court — 

Mr. Barber : I will admit that. 

Mr. EiTCHiE : and afterwards, in the same court, the 
same judge, have a final trial ; and Mr. Hurd also urged 
that the court there had no jurisdiction of this case until 
there had been a preliminary examination before a justice 
of the peace. 

Mr. Barber : I understood the gentlemen to hold just 
what they say they argued, and also to hold — and I got it 
pretty thoroughly instilled upon me — that they argued 
that the probate judge had no jurisdiction of this offence 
for the reason that he states now, and because the legisla- 
ture hadn't correctly conferred it in this section of the 
statute that I have referred to ; that the probate court, or 
the probate judge, that the mayor, that justices of the 
peace, now have jurisdiction of these offences, we freely 
admit, but that they have exclusive jurisdiction, we most 
vehemently deny. There is no authority cited, neither is 
there any foundation in reason or principle, under the con- 
stitution of Ohio, for such a position. It occurs to me there 
will be found by your Honors in the reasoning of the 
court below upon the authorities there cited — that the 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 277 

reasoning of the court upon tliat point will be found unan- 
swerable, because impregnable. 

We are also told that there is error in this record because 
Father Quigley did not sustain the relation of principal to 
that school at all. Now the record will show you that we 
proved that Father Quigley sustained the identical relation 
of principal to the St. Francis de Sales school. The rec- 
ord shows that the defendant himself assumed the attitude 
of principal and took the part of principal at the time the 
truant officer called upon him for these reports, because he 
forbid the teachers making them ; he told the truant officer 
that he was the man to deal with the question. He told 
the truant officer that the prosecution might be begun just 
as soon as he desired, because the blanks should not be 
filled out. He acted as principal. He assumed himself to 
be the principal of the school — to be the one commanded 
by the statute to make out the report. But when he got 
into court, instead of relying on the unconstitutionality of 
the law, by his attorneys he said to the jury : " We are 
not the principal at all ; we are just the priest of that 
parish down there." 

Mr. HuED : Or superintendent. 

Mr. Barber : Or superintendent. Yes, you started out 
by saying that you had no relation to the school except 
that of pastor, and you ended up by admitting that you 
were superintendent of the school. 

Mr. HuED : If there was any rehition it was that of 
superintendent. 

Mr. Barber : They put in their books showing the con- 
stitution of their schools. And so we called Father McCarthy 
in rebuttal, who is the pastor of Immaculate Conception 
school in the 9th Ward, under the same boards, under the 
same charter, under the same bishop, and under the same 
management as the defendant ; and I want to read just a 
word, so that it will lodge that point in your minds. After 
testifying that they were under the same board of directors : 

Q. Now, according to your way of managing the 
schools, in accordance with the rules and regulations under 



278 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

which this district is organized, who is at the head of your 
parochial schools ? — A. The pastor. 

Q. And what relation — now fully state — what relation 
the pastor sustains to the parochial schools ? — A. He is the 
principal of the schools. 

Q. He is the principal of the school ? — A. Yes, sir. 

Then he goes on to state in what respect he is principal 
over the teachers. 

Mr. KiTCHiE : That is a nice way of swearing to a legal 
conclusion. 

Mr. Barber : It is not a legal conclusion. You cannot 
get a much more simple definition of the word " principal." 
If you undertake to define the word "principal," you will 
have to do it by a circumlocution — by saying that it is he 
who has general charge and control of things, or is at the 
head of a department of affairs. Now, Avithin the eyes of 
the law, a principal of a school is one who had the power of 
producing these reports, or to prohibit them from perform- 
ing this requirement of the law. Any man who thrusts 
his hand against the law and stops the making of the 
reports, so that they do not get to the board of education, 
is the principal of that school within the meaning of the 
law, if he rightfully did it under the by-laws and organi- 
zation of his school. There is no question about that 
being a sensible and rational construction of the word 
*' principal " as used in the statute. 

Judge Eitchie is certainly in error, and I call the 
Court's attention to the fact and point to the record to 
show that the defendant had no blanks until April 25th. 
The law went into force, as I say, in January, 1889. He 
had blanks in February, and when this amendment was 
passed, which took effect on April 20, after that was 
passed — it don't make any difference why — another bunch 
of blanks was taken to him, identical in form, of the. same 
impression as had been left with him in February. 

Mr. Eitchie : "Will you take it as an interruption if I 
should correct you ? 



THE STATE OF OHIO VS. THE EEV, PATRICK F. QUIGLEY. 279 

Mr. Baebek : No. 

Mr. EiTCHiE : In February, the blanks were left with 
Mr. Eochford, and were kept under lock and key by the 
teacher. 

Mr. Barbek : I will admit that they were delivered to 
Mr. Rochford, one of the teachers, and Mr. Rochford 
agreed to fill them out and hand them back to the truant 
officer, but Father Quigley came into the school, and Mr. 
Rochford says, " Here are the blanks left with me by the 
truant officer ;" and that is all that he said. Thereupon 
Father Quigley said, " You will tear the printed part off of 
those blanks and use the other part for waste paper — 
scratch paper." The blanks came directly to the defend- 
ant. That is the testimony of Mr. Rochford. 

There are three points that have been strenuously 
insisted upon from the beginning to the end of this case — 
hours and hours have been spent in the discussion of 
them. One is, the unconstitutionality of the law ; and 
another is the question of jurisdiction, which is a pet 
point with Mr. Hurd and which he has always spent a 
great deal of time upon, and upon this point Judge 
Ritchie has got so that he don't trust himself except upon 
written manuscript as to the meaning of those words in 
section 13 : 

Any person or officer mentioned in this act, and desig- 
nated as having certain duties to perform in the enforce- 
ment of any of its provisions, neglecting to perform any 
such duties, shall be liable to a fine of not less than twenty- 
five dollars or more than fifty dollars for each and every 
offence. 

Now I confess that I cannot see anything in the point, 
and yet it is argued and insisted upon, and the judge below 
—my friend is mistaken : it was thoroughly considered by 
the court below, as appears in this number of the Bulletin 
— and the judge below considered this argument and rea- 
soned it out; but still he adopts the same old argument 
and presents it to this Court, and how it is that nobody Vut 



280 THE STATE OF OHIO Vd. THE KEY. PATRICK F. QLIGLEY. 

the truant officer can be punished under this act ; that the 
whole aim of this law, that is to accomplish the education, 
that the whole aim of this law and all its duties are to be 
performed by the truant officer and nobody to be punished 
for any violation of it — of the enforcement of the act — 
except the truant officer himself, for that is what it 
amounts to, when stated in my words instead of his, — is 
past my comprehension. 

Now the first answer to that view is, that it is a strained 
and unnatural and a technical construction, which defeats 
the whole intention of the law. The law required all prin- 
cipals of all public schools and all private schools to fur- 
nish these reports to the clerk of the board. It will be at 
once seen that it is absolutely necessary to have that infor- 
mation in order to enforce the law. If the truant officer 
finds a truant — a boy that is required to be at school — it 
was soon found in actual practice, what you can see by 
way of fictitious illustration, that the boy would say : " I 
belong to Father Quigley's school and I have attended my 
hundred days." How can you know ? You cannot carry 
out the act without the names of the pupils attending the 
parochial, the private, and the public schools. It is nec- 
essary to have it in practice, and they quit trying to enforce 
the law until this question should be decided by the courts. 
They commenced again after the decision in the court 
below, and all went to obeying the law as interpreted by 
the court below. I regard that point of construction as 
strained, as I said — as unnatural, as defeating the whole 
object of the law, as extremely technical ; and a complete 
answer to it is this : that if the legislature ever intended 
that only the truant officer was subject to the penalties 
of that act, why didn't they say so? What was the use 
of saying, " All persons and all officers having duties to 
perform under this act"? Why didn't they say, '*A11 
truant officers," instead of the circumlocution which was 
used ? 

Now I have said upon this case in error all that I wish 



THE STATE OF OHIO US. THE KEV. PATRICK F. QUIGLEY. 281 

to say* I have never felt more confident of the constitu- 
tionality of a law than I have of this one. don't believe 
there are very many records that are in a more magnificent 
shape than that one. It is the desire of the State of Ohio 
to have the questions fairly and squarely presented, and 
we assumed the burden of proving things there. There 
are rulings, there are charges on the construction of the 
law, against the state, unfavorable to the state. I think it 
could be changed. We are held by the judge below to 
prove that there must be an actual delivery of the blanks, 
or what would amount to a delivery. I do not believe 
there is any construction like that reasonable and rational. 
The law that he laid down in regard to the seating capac- 
ity is favorable to the defendant : I think it is fairly a 
matter of defence. The state has nothing to do with that 
in making its part of the case. 



Iln tbe Circuit Court of Xucae Counti?, ®bio^ 

Patrick F. Quigley vs. The State of Ohio. 
Opinion of the Court, October 10, 1891. 

Haynes, J. — This case is brought into this court upon a 
petition in error to reverse the judgment of the court of 
common pleas, and arises under a statute passed by the 
Legislature of the State of Ohio, on the 25th of April, 1890, 
entitled " An act to compel children under 14 years of age 
to attend school a certain length of time each year." The 
case is one of large importance ; and the defendant in the 
case — the plaintiff in error here — denying the right of 
the legislature under the constitution of the state to pass 
the law in question, has determined to, resist the law, for 
the purpose of raising the constitutional questions, and 
having them ultimately decided by the supreme court of 
the state. We regret very much that in a case of this 
nature, where the questions are so important as they are 
here, that we have not the power to reserve it directly to 
the supreme court, that the questions of law might be 
passed upon by that court in the first instance ; but inas- 
much as we are unable to do that, we have given the case 
very full and careful attention, and will endeavor to state 
in substance the conclusions at which we have arrived with 
regard to the questions involved. 

Before coming to the main questions in the case, there 
are one or two questions arising in regard to the prosecu- 
tion of the suit. The first is, that the court of common 
pleas did not have jurisdiction of the subject of the prose- 
cution, for the reason, as is claimed, that, by the 13th sec- 

282 



THE STATE OF OHIO VS. THE KEY. PATEICK F. QUIGLEY. 283 

tion of the act as amended, jurisdiction of the prosecution 
of this offence is vested either in a mayor's court, justice 
of the peace, or probate judge. The section reads as 
follows : 

Any person or officer mentioned in this act, and desig- 
nated as having certain duties to perform in the enforcement 
of any of its provisions, neglecting to perform any such 
duties, shall be liable to a fine of not less than $25 nor 
more than $50 for each and every offence ; and mayors, 
justices of the peace and probate judges shall have juris- 
diction to try the offences described in this act, and their 
judgment shall be final. 

The question was raised both upon the trial of the case 
and upon a motion in arrest of judgment, and was disposed 
of by the court of common pleas in an elaborate opinion 
upon the final motion for arrest of judgment. The opinion 
of that court upon the question may be found in the Law 
Bulletin of August 24, 1891, commencing upon page 129. 
I shall not re-state the positions that are taken by the court 
in that case, but any one interested in the question will 
find a very full statement by the court of common pleas' 
decisions upon the case and a discussion of the provisions 
of the statute. Suffice it to say, that that ground upon 
which the motion in arrest of judgment was overruled was, 
that substantial provision had been made for the punish- 
ment of the same offence prior to the passage of this amend- 
ment, but that by the rules of law that should prevail in 
the case, where the act amending the original act had pro- 
vided jurisdiction in other courts, as it has here, it gave to 
those courts a concurrent jurisdiction with the court of 
common pleas, and did not oust the court of common pleas 
of the jurisdiction which it had before that time. With the 
decisions cited and the statements of the rules of law as 
made by the court of common pleas, we are disposed to 
abide, and therefore hold that the court did not err in the 
overruling of the motion in arrest of judgment, and in 



284 THE STATE OF OHIO VS. THE EEV. PATRICK E. QUIGLET. 

liolding that tlie court of common pleas had jurisdiction to 
hear the case. 

Another question, touching the method of proceeding 
in the case, is made by counsel in their objection to the 
manner in which tlie jury was impanelled ; or, more cor- 
rectly stated, perhaps, to the fact that the court allowed 
the state to call for a struck jury, and allowed that jury to 
hear and determine the case. Proper motions were made 
to set aside the impanelling of the jury, and proper objec- 
tions were made to the impanelling of the struck jury, so 
that the question is properly before us. And the ground 
taken by counsel in regard to that is, that the statute which 
provides for a struck jury is applicable only to the trial of 
an issue of fact in a civil action, and is not applicable to 
the trial of an issue of fact in a prosecution under an in- 
dictment. 

Without going into that matter very elaborately, we are 
of the opinion that the case has practically been decided 
by the supreme court of this state in the case of Hulse v. 
The State, 35 0. S. 421. In that case a struck jury was 
demanded by the defendant, and proceedings were taken 
to strike a jury under the statutes then in force for the 
impanelling of a struck jury in a civil action. In the per- 
formance of that duty, however, the auditor being absent, 
the chief clerk in his office performed the duties assigned 
to the auditor, and in like manner the chief clerk in the 
office of the clerk of the court of common pleas performed 
the duties assigned to the clerk of the court of common 
pleas. And thereupon a challenge was made to the whole 
array, for the reasons that these officers respectively were 
not authorized to select the jurors, and therefore the jurors 
were illegally selected. The court, after citing the statute 
in regard to the impanelling of a jury, said : 

These provisions, it will be seen, are found in that part 
of the revision relating to practice in civil cases, but they 
also apply to criminal cases except that those relating to a 
struck jury do not apply to a capital case. 



THE STATE OE OHIO VS. THE REV. PATRICK E. QUIGLEY. 285 

It is suggested by counsel that the supreme court was 
not authorized in this particular case to make the decision 
that they did ; that it was extrajudicial, so far as that case 
was concerned ; and that under the statute — sec. 7276 — the 
court were not authorized to make that statement — that is 
to say, that sec. 7276 does not support the statement made 
by the court. 

In relation to juries in prosecutions, the statutes of the 
state provide, in sees. 7267 to 7269 in regard to the im- 
panelling of jurors, and in capital cases a special law 
governs. Then sec. 7276 provides : 

In all other criminal cases the jury summoned and im- 
panelled according to the provisions of law relating to the 
summoning and impanelling of juries in other cases shall 
try the accused. 

It appears to us that the supreme court, in passing 
upon this question, would be called upon to inquire, in the 
very first instance, whether an act that was applicable to the 
impanelling of a jury in a civil action would be applicable 
to the impanelling of a jury in a criminal prosecution ; and 
they practically decided that it is. And, indeed, as a 
matter of fact, ever since the enactment of these statutes, the 
jurors who were impanelled for the trial of criminal cases 
have been impanelled in accordance with the law in regard 
to civil cases, and under and by virtue of this section, 7276; 
and we are very clear that the Court did not err in over- 
ruling the various motions which were made in this case, 
and the various objections to the impanelling of this struck 
jury. We see no reason, inasmuch as the statute provides 
that any person or any party to an action may demand a 
struck jury, why the state should not have the same priv- 
ilege to demand a struck jury that the defendant has. In 
this particular case in 35 0. S., the Court, holding that the 
steps taken were illegal, and that the deputies had not the 
right to perform the duties devolved upon their principals, 
reversed the case and sent it back ; nowhere suggesting 



286 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

that tlie defendant had not the right to demand a struck 
jury and to have it impanelled for the trial of the case. 

We now come to the more important questions which 
were made in the case, and that relate to the statute. 
Testimony having been offered for and on behalf of the 
state, and also on behalf of the defendant, the defendant's 
counsel at the close of the trial, before the charge of the 
Court, requested the Court to charge the jury as follows : 

Gentlemen of the Jury: The Court instructs you as a 
matter of law — 

1. That the Legislature of the State of Ohio had no 
authority to enact those portions of the law commonly 
known as the Compulsory Education Law, approved April 
15, 1889, more accurately described as " An act to compel 
children under 14 years of age to attend school a certain 
length of time each year," approved April 15, 1889, or of 
the various acts amendatory of and supplemental thereto, 
which make the attendance of children at school com- 
pulsory, under penalties upon the children or their parents, 
guardians, or other persons having them in charge, in case 
of failure of such attendance on the part of said children, 
as well as those portions which relate and prescribe what 
amount of instruction in secular knowledge children of 
school age shall receive ; such legislation being contrary to 
the provisions of the constitution now in force in this state, 
as the organic law thereof. 

And this request the Court refused to give, and to such 
refusal the defendant, by his attorneys, then and there duly 
excepted. 

2. That the sections of said act or acts under which it 
is sought to base the prosecution in this case, being de- 
pendent upon and necessarily connected with and only in 
furtherance of the end contemplated in said other portions 
of the act as above described, necessarily fall with those 
portions. 

That was refused, and the refusal excepted to. 

3. That there is no other law than that above described, 
warranting this prosecution ; wherefore you will in this case • 
return a verdict of not guilty. 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 287 

That request was also refused, and an exception taken. 

The Court then proceeded to charge the jury. And 
inasmuch as exceptions were taken substantially to the 
whole of the ^charge as made, it is perhaps well that I 
should read the charge, or the portions of it excepted to, 
and discuss the questions that are raised thereon in their 
order. 

The Court, having stated that the prosecution was under 
this law, proceeds to say : 

The principle of this law is not a new one in this state. 
In the year 1877 a law was passed by the Legislature of this 
state making it the duty of every parent or other person 
having in his charge children under certain ages, or be- 
tween certain ages, to send them to school a certain length 
of time each year, and imposing a fine upon every violation 
of this duty. Since the year 1877 down to the present time, 
the principle of compulsory education or the enforced 
attendance upon school of the children in the state has 
been a part of our legislation as to schools ; and until this 
case, so far as I am aware, the authority to pass such laws 
was never questioned in the courts. 

This law — the law involved in this prosecution — does 
not abridge the right or the duty of parents to educate their 
children ; it recognizes the right and seeks to enforce the 
duty. The law does not interfere with the control or man- 
agement of private schools. Attendance upon a parochial 
or other private school is not forbidden. On the other 
hand, it is a full compliance with the law ; and children in 
the state who attend parochial or other private schools are 
not by this law compelled to attend public schools. The 
language of the law is : " Every parent, guardian, or other 
person having control and charge of any child between the 
ages of 8 and 14 years shall be required to send any such 
child or children to a public or private school for a period of 
not less than 20 weeks in each year." But this requirement is 
not an absolute one. Under the provisions of the law 
children may, in certain cases, be excused from attending 
any school, as where their physical or mental condition is 
such as to disable them from attending school, or where 
they are taught at home by some qualified person ; and 
perhaps in other cases specified in the law. 

This law, I say to you, gentlemen, is a constitutional 



288 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 

anu a id enactment. An extended discussion at tliis time 
will not be expected from the court ; in fact, it is not neces- 
sary, as the reasons for this conclusion will sufficiently 
appear by a brief reference to some of the provisions of the 
constitution and the decisions thereunder of the supreme 
court of the state. 

In sec. 1, Art. II., of the constitution, it is provided that 
" the legislative power of this state shall be vested in a 
general assembly, which shall consist of a Senate and House 
of Representatives." "This provision," say the supreme 
court, "is not that the legislative power as conferred in 
the constitution shall be vested in the general assembly, but 
that the legislative iDower of this state shall be vested. That 
includes all legislative power which the object and pur- 
poses of the state government may require. And we must 
look to other provisions of the constitution to see how far 
and to what extent the legislative discretion is qualified 
or restricted. Hence the difference between the constitu- 
tion of the United States and a state constitution such as 
ours. In the former we look to see if a poAver is expressly 
given ; in the latter we look to see if it is denied or limited. 
Therefore, when the power of the general assembly to enact 
any particular law is drawn in question, the proper inquiry 
is whether such an exercise of legislative power is clearly 
prohibited by the constitution. The grant of power being 
general, the question is as to the existence of a limitation 
arising from special prohibition. And such prohibition 
must either be found in express terms or be clearly infer- 
able by necessary implication from the language of the 
instrument, when fairly construed^ according to its man- 
ifest spirit and meaning." 

It is not claimed in this case that the passage by the 
legislature of compulsory education laws is specially pro- 
hibited by the constitution ; but it is argued that the power 
to pass such laws is impliedly prohibited by sec. 20 of Art. 
I., which reads as follows: "This enumeration of rights 
shall not be construed to impair or deny others retained 
by the people ; and all powers not herein delegated remain 
with the people." 

Again it is fortunate that the supreme court of the state 
have given to us a very clear exposition of the meaning of 
this constitutional provision. "This clause" — that all 
powers not herein delegated remain with the people — "means 
exactly what its words imj)ort ; but even from them a plain 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 289 

implication arises that the powers in and by the constitu- 
tion delegated do not remain with the people, bnt are vested 
in the agents and officers of the government, to be exercised 
by them alone. Among the powers delegated by the con- 
stitution is the legislative power of the state, which is vested 
in the general assembly. Whatever limitations upon the 
power tlius delegated to the general assembly may be found 
in other provisions of the constitution, it is quite clear that 
sec. 20 of Art. I. does not impose any limitation upon it 
whatever. That section only declares that powers not 
delegated remain with the people. It does not purport to 
limit or modify delegated powers." 

If there was any doubt that the terms of the constitution 
whereby the legislative power of the state is vested in the 
general assembly are comprehensive enough to authorize 
the enactment of a law like the one in question, an examina- 
tion of the provisions of the constitution relating to schools 
will remove all such doubt. By sec. 7 of Art. I. it is made 
the duty of the general assembly to pass suitable laws to 
encourage schools and the means of instruction. By sec. 2 
of Art. VI. it is made the duty of the general assembly to 
make such provision, by taxation or otherwise, as with the 
income arising from the school trust fund will secure a 
thorough and efficient system of common schools through- 
out the state. 

In commenting upon these constitutional provisions, 
the supreme court say : " The system of public education 
in Ohio is the creature of the constitution and statutory 
laws of the state. It is left to the discretion of the gen- 
eral assembly, in the exercise of the general legislative 
power conferred upon it, to determine what laws are ' suit- 
able' to secure the organization and management of the 
contemplated system of the common schools." With this 
legislative discretion the court has no power to interfere,, 
except so far as its exercise is limited or restrained by the 
constitution. "All implied restrictions, which rest upon 
theory only, the people have been content to leave to the 
judgment and patriotism and sense of justice of their rep- 
resentatives." It is a well-established rule that the courts 
are not authorized to declare a law unconstitutional and 
void unless it is clearly in conflict with some of the provis- 
ions of the constitution, and that every doubt must be 
resolved in favor of the law. No such conflict being shown 
between this law and any provision of the constitution, it 



;i90 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

follows tliat the Legislature had the lawful power to pass 
it, and that each and all of its provisions are binding upon 
all persons to whom they are applicable. If the law is 
unwise, or oppressive, or unjust, such fact is a good reason 
why steps should be taken to secure its repeal, or to secure 
the removal of any of its objectionable features, if it have 
any; but it furnishes no excuse for the violation of the law. 
The remedy for unwise legislation cannot be administered 
by the courts. So long as the law is in force it is the duty 
of all to obey it, and the duty of the courts, whenever 
occasion requires it, to enforce its penalties. 

To that charge an exception was taken in due form, and 
the question has been reargued here with great learning 
and ability. It is claimed that the statute is unconstitu- 
tional — 

1. Because it interferes with the parental authority and 
the parental right to direct as to the education of his chil- 
dren, and 

2. Because of the penalties that are imposed by one 
section of the statute. 

Yery elaborate arguments have been made as to the 
right of the parent over the child — the right of the father 
over the care and custody of the child ; the right to guard 
and guide as to its education; on the rights to its services; 
on the righi to its companionship, and the right to retain 
the child in his care and have control over it — these have 
all been stated with a great deal of ability. 

The general right of the father and of the parent to the 
custody of the child is not, as we understand it, very differ- 
ent in Ohio from what is claimed by counsel. We think 
that right is very fully recognized by the courts in this 
state ; but to the law in regard to that matter there are ex- 
ceptions — as there are exceptions to all general rules of law 
— and it has been said by the Supreme Court Commission 
(in Clark v, Bayer, 32 0. S. 299, syllabus): 

As a general rule the parents are entitled to the custody 
of their minor children. When they are living apart, the 
father is^ prima facie, entitled to that custody, and when he 



THE STATE OF OHIO VS. THE REV. PATRICK E. QUIGLEY. 29J 

is a suitable person, able and willing to support and care 
for them, his right is paramount to that of all other per- 
sons, except that of the mother in cases where the infant 
child is of such tender years as to require her personal 
care ; but in all cases of controverted right to custody, the 
welfare of the minor child is first to be considered. 

The father's right is not, however, absolute under all 
circumstances. He may relinquish it by contract, forfeit it 
by abandonment, or lose it by being in a condition of total 
inability to afford his minor children necessary care and 
support. 

This case arose in a controversy in regard to the cus- 
tody of a child, but it states the rights of parents. Judge 
Ashburn, in delivering the opinion of the court, thus states 
the law : 

In this country there is quite a uniformity in the decis- 
ions in relation to the rightful custody of infant children. 
The general spirit of modern adjudged cases on this sub- 
ject, both in England, and the States, does not essentially 
differ. As a general rule the father is considered as being 
entitled to the custody of his minor children, and in case 
of his death or incapacity, the mother. In cases of con- 
troverted custody, the present and future interest of the 
minor controls the judgment and directs the discretion of 
courts. While the legal rights of parents are to be re- 
spected, the welfare of the minor is of paramount consid- 
eration. If necessary to attain that end, the custody of 
minor children will be taken from their parents or refused 
to them. 

The same principle, as we understand it, is recognized 
in two other cases, among others (in the case of Prescott v. 
The State, 19 0. S. 184, and in the Cincinnati House of 
Refuge V. Ryan, 37 0. S. 197) ; and as these two cases 
agree together — that is, on the question of the custody and 
control of children, and somewhat, perhaps, in regard to 
the penalties — I will refer to them. 

In the Prescott case an accusation was made in the 
Van Wert Common Pleas before the grand jury " that 
Benjamin Prescott, on February 8, 1869, in that county, 



292 THE STATE OF OHIO VS. THE KEV. PATRICK F. QUIGLEY. 

unlawfully, wilfully, maliciously, and feloniously burnt and 
caused to be burnt a barn," and the grand jury reported 
to the court of common pleas that they had examined the 
evidence in regard to the matter, and that they found the 
accusation to be true — that it was supported by sufficient 
evidence to put Prescott on trial upon the accusation. 
•" That he was a male infant under the age of sixteen years, 
and of the age of fourteen years at the time of the return ; 
that he was then and had been for more than a year past a 
resident of Van Wert County ; that he was vicious and in- 
corrigible, and a suitable person to be committed to the 
guardianship of the directors of the House of Eefuge or to 
the Reform Farm in Ohio ; and that, finding him to be such 
a person, they make the return as stated, instead of an in- 
dictment, for the court to take such action in the premises 
as the law provides." 

Thereupon, under that state of facts, he was committed 
to the Reform Farm, and on his behalf a writ of error was 
prosecuted to reverse the order and judgment of the court 
of common pleas. 

Judge White, in delivering the opinion of the court, 
says : 



The proceedings disclosed in the record were had under 
the eighth section of the act to authorize the establishment 
of houses of refnge, and the statutes subsequently enacted 
enlarging the operation of that act so as to authorize com- 
mitments to be made to "The State Reform Farm" from 
any county in the state. 

The decision of the case depends upon the validity of 
the section named, which provides : " If any accusation of 
the commission of any crime shall be made against any in- 
fant under the age of sixteen years before any grand jury 
of the county, . . . and the charge appears to be supported 
by evidence sufficient to put the accused upon a trial, the 
grand jurors may, in their discretion, instead of finding an 
indictment against the accused, return to the court that it 
appears to them that the accused is a suitable person to 
be committed to the guardianship of the directors of the 



THE STATE OF OHIO VS. THE EEY. PATRICK F. QUIGLEY. 293 

House of Kefuge, and the court shall thereupon order such 
commitment." 

The subsequent legislation authorizes the commitment 
to be made to the guardianship of the Board of Commis- 
sioners for Keform Schools, who are invested by law with 
the care and control of the Keform Farm. 

In the assignments in error it is claimed that the 
statute in question is in conflict with Art. V. of the amend- 
ments to the constitution of the United States ; also with 
sections 5 and 10 of Art. T. of the constitution of the state. 

Then, overruling the objection in regard to the amend- 
ment to the constitution of the United States as not appli- 
cable to the state laws, he proceeds : 

The provisions referred to in our state constitution re- 
late to the preservation of the right of trial by jury, and to 
the rights of the accused in criminal prosecutions. We do 
not regard this case as coming within the operation of 
either of these provisions. It is neither a criminal prose- 
cution nor a proceeding according to the court of the 
common law, in which the right to a trial by a jury is 
guaranteed. 

The proceeding is purely statutory ; and the commit- 
ment in cases like the present is not designed as a punish- 
ment for the crime, but to place minors of the description 
and for the causes specified in the statute under the guar- 
dianship of the public authorities named, for proper care 
and discipline, until they are reformed or arrive at the age 
of majority. The institution to which they are committed 
is a school, not a prison ; nor is the cii.iracter of their de- 
tention aflected by the fact that it is also a place where 
juvenile convicts may be sent, who would otherwise be con- 
demned to confinement in the common jail or the peniten- 
tiary. 

And after further discussion as to the act and the 
rights of the parties under it, he aflirms the judgment. It 
is proper to say, however, that under that statute, this 
being in the nature of an ex-parte proceeding, the question 
might be again inquired into with regard to whether the 
commitment was properlj^ made. 



294 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

In the case in 37 0. S., House of Kefuge v. Kyan, the 
question came up again, and Judge Johnson delivered the 
opinion of the court, and among other things says : 

The proceeding is purely statutory. It is intended to 
provide a summary method of caring for destitute children. 

The commitment is not designed as a punishment for 
crime, but to place destitute, neglected, and homeless 
children, and those who are in danger of growing up as 
idle and vicious members of society, under the guardian- 
ship of the public authorities, for their proper care, ancj to 
prevent crime and pauperism. As to such infants, it is a 
home and a school, not a prison. While no provision is 
made for a notice to those interested, if such there be, of 
the pendency of the proceeding, yet it would doubtless be 
proper for the examining officer, where it is practicable, 
before making the order, to require such notice, but the 
statute does not seem to require it as essential to the exer- 
cise of this power. As was said in Prescott v. State, 19 0. 
S. 188, where a similar question arose, " neither the infant 
nor any person who w^uld in the absence of such commit- 
ment be entitled to his custody and services will be with- 
out a remedy." The statute itself, as Avell as the provisions 
relating to habeas corpus, provide an adequate and com- 
plete remedy. In such a direct proceeding, the commit- 
ment does not operate to restrict the power of the court, on 
habeas corpus, to inquire fully into the cause of the deten- 
tion, and to determine upon the whole case whether the 
parent is entitled to the custody of his child. 

The court below should have fully heard this case upon 
its merits, the commitment being in due form, and if the 
father was not a suitable person to have the care of these 
children, should have remanded them to the custody of 
defendants until legally discharged. The authority of the 
state, as parens patrice, to assume guardianship and educa- 
tion of neglected homeless children as well as neglected 
orphans, is unquestioned. The institutions of public char- 
ity for this purpose, in this state, are a subject of just pride 
to every citizen. The provisions of law under which these 
institutions are maintained should receive such a construc- 
tion as will not defeat their humane intention. So long as 
the management of these institutions is held to public 
account, and is amenable to the courts, there need be no 
apprehension that personal rights will be infringed, espe- 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 295 

ciallj where, as in tliis case, direct and ample remedies by 
habeas corpus are provided for the protection of the legal 
rights of parents and others. 

In the statute in question the first section provides — 

That all parents, guardians, and other persons who have 
care of children, shall instruct them, or cause them to be 
instructed, in spelling, reading, writing, English grammar, 
geography, and arithmetic ; and every parent, guardian, or 
other person having control and charge of any child between 
the ages of eight and fourteen years shall be required to 
send any such child or children to a public or private 
school for a period of not less than 20 weeks in city 
districts in each year, 10 weeks of which, at least, shall be 
consecutive, and in village and township districts not less 
than 16 weeks in each year, 8 of which shall be consec- 
utive, unless such child or children are excused from such 
attendance by the superintendent of the public, private, or 
parochial schools in cities, or by authority of the board of 
education in villages and townships, when it shall have been 
shown to the satisfaction of said superintendent, or said 
board, that the physical or mental condition of such child 
or children has been such as to prevent his, her, or their 
attendance at school, or that said child or children are 
taught at home by some qualified person or persons in such 
branches as are usually taught in primary schools. 

Sec. 5 as amended, and which was passed in 1889, pro- 
vides that — 

All children between the ages of seven and fourteen 
years who are habitual truants from school, or while in 
attendance at any public or private school are incorrigible, 
vicious, or immoral in conduct, and all children between 
said ages, and all minors between the ages of fourteen and 
sixteen who cannot read and write the English lan- 
guage, who absent themselves habitually from school 
and habitually wander about the streets and public places 
during school hours, haying no business or lawful occupa- 
tion, shall be deemed juvenile disorderly persons, and sub- 
ject to the provisions of this act. 

And after providing for truant ofiicers and their duties, 
they further provide-— 



296 THE STATE OF OHIO Vi>. THE KEV. PATRICK F. QUIGLEY. 

That it shall be the duty of all truant officers to examine 
into all cases of truancy, when any such come before their 
notice, or when requested to do so by the superintendent 
of public schools or by the board of education, and to warn 
such truants, their parents or guardians, in writing, of the 
tinal consequences of truancy if persisted in, and also to 
notify the parent, guardian, or other person having the 
charge and control of any juvenile disorderly person, that 
the said person is not attending any school, and to require 
said parent, guardian, or other person, to cause the said 
child to attend some recognized school within five days 
from said notice ; and it shall be the duty of said parent, 
guardian, or other person having the legal charge and con- 
trol of said child, to cause the attendance of said child at 
some recognized school. If said parent, guardian, or other 
person having the legal charge and control of said child, 
shall wilfully neglect, fail, or refuse to cause said child to 
attend some recognized school, it shall be the duty of such 
officers to make, or cause to be made, a complaint against 
said parent, guardian, or other person having the legal 
charge or control of such child, in any court ol competent 
jurisdiction in the city, village, or township in which the 
offence occurred, for such refusal, failure, or neglect; and 
upon conviction thereof, said parent, guardian, or other 
person, as the case may be, shall be punished by a fine of 
not less than $5 nor more than $20, or the court may, at its 
discretion, require persons so convicted to give bonds in 
the penal sum of $100, with one or more sureties to be ap- 
proved by said court, conditioned that said persons so con- 
victed shall cause the child or children under his or her 
legal charge or control to attend some recognized school 
within five days thereafter, and to remain at said school 
during the term prescribed by law; provided that if said 
parent, guardian, or otlier person in charge of such child, 
shall prove inability to cause said child to attend said 
recognized school, then said parent, guardian, or other 
person, shall be discharged, and said court, upon complaint 
of said truant officer, or other person, that said child is a 
juvenile disorderly person, as described in section five of 
this act, shall proceed to hear such complaint, and if said 
court shall determine that said child is a juvenile disorderly 
person within the meaning of this act, such child shall be 
deemed guilty of a misdemeanor, and said court shall there- 
upon sentence said child to some juvenile reformatory, or 



THE STATE OF OHIO V6\ THE EEV. PATRICK F. QUIGLET. 297 

connty children's home, until such child shall arrive at the 
age of 16 years, unless sooner discharged by the board of 
trustees of said reformatory or home ; provided, however, 
that said sentence may be suspended, in the discretion of 
the court, for such time as the child shall regularly attend 
school and properly deport himself or herself. It is 
further provided that if for any cause the parent, guardian, 
or other person having charge of any juvenile disorderly 
person, as defined in this act, shall fail to cause such ju- 
venile disorderly person to attend said recognized school, 
then complaint against such juvenile disorderly persop may 
be made, heard, and tried, and determined in the same 
manner as provided for in case the parent pleads inability 
to cause said juvenile disorderly person to attend said 
recognized school. 

The prosecution in this case is not under either of these 
sections ; but it is claimed by counsel in argument that the 
duties which are devolved upon principals of schools are 
ancillary, or made for the purpose of enabling the truant 
officer to properly prosecute cases of this kind, and that if 
these sections should be found to be unconstitutional, the 
whole law should fail. Admitting that to be true, the ques- 
tion is, whether these sections are, by reason of their penal- 
ties, unconstitutional. We are clearly of the opinion that 
the supreme court have practically decided these questions 
for us ; that, within the limits of the decisions we have al- 
ready read, the clauses in these sections of the act are decided 
to be constitutional. We are aware that the question is a very 
important one ; and counsel have cited to us a case that 
may be found in 55, III., 280, People v. Turner, wherein 
the Supreme Court of Illinois have taken very decided 
ground against the validity of enactments substantially like 
this — not with reference to a school law in that case, but in 
reference to acts in regard to houses of refuge and reforma« 
tories such as are mentioned in 19 and 37 0. S., which we 
have cited. But while they have taken that ground, and 
while the decision seems to denounce the law with great 
vigor, we are of the opinion that the contrary view has 
practically been taken by the Supreme Court of the State 



298 THE STATE OF OHIO l\S. THE KEV. PATKICK F. QUIGLEY. 

of Ohio ; and with these statutes and these decisions stand- 
ing as the law of the land, this statute is certainly one that 
we ought not to pass upon and declare unconstitutional, even 
if we thought that there was very serious doubt in regard 
to the constitutionality of the act. The case under these 
decisions should be decided by the supreme court, which 
has the power, of course, to mould its own decisions — con- 
firm them, set them aside, or make such final disposition of 
the case as in its judgment is proper. 

It will be noticed in these cases that while provision is 
made for the bringing of the child by habeas corpus 
before the proper court, to inquire into the cause of its 
detention, yet the supreme court say, if the parent is not 
the proper person to have the custody of the child, he or 
she may be remanded to the authorities of the Eeform 
School, to remain in the custody of the Heform School, as 
provided under the section that I have referred to. It will 
be noticed also, in the section which I have read, that the 
court itself which sentences the child to the Reform School 
has power to suspend that sentence if the child shall 
readily attend school, and properly deport himself or 
herself; and we suppose that discretion lasts during the 
time that the child remains in the custody of the reform- 
atory — the Eeform Scjiool at Lancaster, if a boy, and he 
shall be sent there, or the school at Delaware, if a girl, and 
she shall be sent there. The authority seems to be placed 
here, to some extent, under the police power of the state. 
The authority may be placed also under the right that the 
state assumes to look after the care and custody of children 
who are without proper care and custody from their par- 
ents. As was stated by the court of common pleas in its 
charge, the sending of children to school, either private 
or otherwise, where they may be taught to perform their 
duties to the state, or be educated so that they may in- 
telligently perform those duties, is favored ; and it is only 
when the parent, if I may so say, forfeits his right to the 
child, or at least when he shall so far forget his duty to 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 299 

the child as to entirely neglect to educate him, or refuse 
to educate him, or permits the child to run at large, so 
that he becomes a disorderly person within the meaning 
of section 5 of this statute, or when the child himself, 
perhaps even without the consent of the parent, takes 
upon himself the right to do so, that the state steps in, and, 
by virtue of these statutes, compels his attendance at schooL 
It declares a child who has arrived at that condition to be 
a disorderly person. It declares that a parent who has so 
far forborne to perform his duty to the child as to not 
properly educate him within the limits that are prescribed 
— which are described as simply the elements of a common- 
school education — is guilty of an offence against the wel- 
fare of the state — guilty of a misdemeanor — and that he 
shall be punished by a fine. And without discussing the 
question, because it is a very broad one, and may lead into 
an extended discussion, we are of opinion that we should 
hold here that the court committed no error in its charge 
to the jury when it declared that this law was constitutional, 
and should be enforced. 

Another question arises in regard to the charge which 
should be disposed of, and that question arises under the 
indictment, it being claimed that no offence is charged 
against the plaintiff in error in this case. The record 
shows that a demurrer had been filed to the indictment. 
It shows that the demurrer was withdrawn, but at the 
same time it shows that afterwards a demurrer was heard. 
That demurrer is not found among the papers. But in- 
asmuch as it is competent to demur to an indictment for 
the reason that it does not state an offence against the laws 
of the state, we assume that that was the ground upon 
which the demurrer was based. 

The indictment finds that the plaintiff in error " was 
during all of the last week of the month of April, 1890, and 
ever since has been, principal and teacher of and in a 
certain school, which said school was for a long time prior 
to said last week in April, and during all of said last week 



300 THE STATE OE OHIO VS. THE REV. PATEICK E. QUIGLEY. 

in April, continuously held and kept open for the attend- 
ance of and was attended by pupils under the age of 14 
years and over, and of the age of 8 years and over, in the 
city of Toledo." It will be noticed that the language of 
the indictment is, that he was " the principal of a certain 
school." Section 11 of the statute provides "that it shall 
be the duty of all principals and teachers of all schools, 
public and private, to report to the clerk of the board of 
education," etc. ; and the point made is, that when it is 
said he is the principal of a school, that he might have been 
the principal of some /school other than a public or private 
school, and that therefore he was not within the terms of 
section 11 of the statute. But it will be noted here in the 
first instance that the broad declaration of duty is this : 
"That it shall be the duty of all principals and teachers of 
all schools," adding " public and private ; " and it looks 
to us as if the declaration " public and private " was not 
intended to limit to certain schools, but simply to add to 
its definition, and make it broader, if it could be, than it 
was before. It is said, however, that the testimony shows 
that the plaintiff in error was the principal of a parochial 
school, and that parochial schools are not private schools. 
But we are unable to agree with counsel in that respect. 
We are of opinion that parochial schools are private 
schools, within the definition aud description of parochial 
schools as set out in this indictment. We suppose if a 
certain number of gentlemen should meet together and 
agree that they would hire a teacher, and pay him for his 
services in that school, and no person should attend that 
school but their own children, that would be a private 
school. We cannot see any difference between that school 
and a school where the congregation of a church should 
meet together and say, " We will have a school to be sup- 
ported by this congregation, by the contributions of its 
members, which shall be open to the children of this 
congregation, and in which they shall be educated." We 
think that becomes a private school within the terms of the 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 301 

statute, so far as that congregation is concerned, and is a 
private school as distinguished from a public school, which 
we understand to be a school supported by taxation, and 
by money raised by the state. We think the demurrer 
was properly overruled. 

Another question arose — in regard to the seating accom- 
modations of the schools, and upon that exception was 
taken. Section 9 provides : 

That it shall be the duty of officers empowered or 
appointed under this act to assist in the enforcement there- 
of, to institute, or cause to be instituted, proceedings 
against any parent, guardian, or other person liaving legal 
control or charge of any child, or corporation violating any 
of the provisions of this act ; provided that this law shall 
not be operative in any school district where there are not 
sufficient accommodations to seat children compelled to 
attend school under the provisions of this act, and that no 
prosecution shall be instituted against any parent, guardian, 
or other person or child in charge of such, unless they 
have received due notification from an officer empowered 
under this act that they are acting in violation of this act. 

The court charged in regard to that as follows : 

Was this law operative in the city school district of the 
city of Toledo in the last week of April, 1890 ? 

Section 9 of the law as originally passed, and which has 
ever since been in force, contains this proviso : *' Provided 
that this law shall not be operative in any school district 
w^here there are not sufficient seating accommodations to 
seat children compelled to attend school under the provis- 
ions of this act." 

It is contended on the part of the state that this proviso 
relates only to the preceding provisions of the law, which 
require children to attend school, and which have for their 
object the prevention of truancy, and that it does not relate 
to the subsequent provisions of the law, which make it the 
duty of the principals and teachers to make report of the 
pupils in attendance at their schools. On the other hand, 
it is contended in behalf of the defendant that the proviso 
relates to each and all of the provisions of the law ; that 
when it says this law shall not be operative, it means each 



302 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

and all of the provisions of the law. On that subject I 
give you this instruction : If you find from the evidence 
that in the last week of April, 1890, the seating capacity of 
the schools in the city of Toledo was not sufficient to 
accommodate children compelled to attend school under 
the provisions of the law, then no part of the law was then 
operative. In that case this provision will not lie, and the 
defendant must be acquitted. 

The law as last amended was passed on April 25, 1890. 
The presumption is that it was in full force and operation 
in the last week in April, 1890, on and after April 25, and 
unless this presumption is rebutted and overcome by the 
evidence in the case, if any, tending to show that the seat- 
ing capacity of the schools was not sufficient to accommo- 
date the children compelled to attend school, then you will 
be warranted in finding that the law was then operative. 

In the first instance, it is incumbent upon the defend- 
ant to show that this case is within the proviso — that is to 
say, it is incumbent upon the defendant, in the first in- 
stance, to show that in the last week in April, 1890, the 
seating capacity of the schools was not sufficient to accom- 
modate the children then compelled to attend schooL But, 
as already stated, the burden of proof is upon the prosecu- 
tion, and the burden of proof remains with the prosecution 
during the whole trial. You are, therefore, to take into 
consideration all the evidence in the case, including the 
presumption, and from this determine whether, in point of 
fact, the seating accommodation of the schools was suffi- 
cient, and therefore whether, in point of fact, the law was 
operative. 

It then proceeds to charge them in regard to the class 
of children that they shall find that the law applies to, and 
that the jury should take all those provisions into consid- 
eration. 

Another point of contention, as we understand, and 
another point of objection to the charge made by counsel 
for defendant, is that the court should have charged the 
jury that if the seating capacity of the schools at that date 
was not sufficient for all the scholars in the city between 
the ages mentioned — that is to say, if all those scholars, 
including those attending private and parochial schools. 



THE STATE OF OHIO V^. THE KEY. PATRICK F. QUIGLEY. 303 

could not have been sufficiently accommodated in the 
school buildings — then the law was not operative in the 
city. We agree with the court of common pleas with re- 
gard to the construction which should be put upon that 
statute, and upon the question of the burden of proof in 
this connection. We think, within the decisions of the 
supreme court of this state, that the case is one where the 
exception should be proved by the defendant, and, accord- 
ingly, the defendant offered evidence tending to prove that 
during the last week of April, 1890, the seating capacity of 
the schools was not sufficient to accommodate all of the 
scholars that might of right attend those schools. We 
think, however, that the construction that is placed by the 
court upon the law — that it is sufficient if seating capacity 
is furnished to those who desire to attend, who wish to 
attend, and therefore not taking into consideration those 
who are attending private or parochial schools — is the true 
construction to be placed upon the act, and that the charge 
made by the court of common pleas was not incorrect in 
that respect. 

Objection has been made that the evidence does not 
show that the defendant was the principal of St. Francis 
de Sales school. We think the testimonj^ shows that he 
was the principal of that school, and that he was the proper 
person with whom the blanks should have been left by the 
officer who distributed the blanks for the clerk, and that 
he is the person upon whom was devolved the duty, under 
the statute, of making these returns, or causing them to be 
made. The language of the statute is : " That it shall be 
the duty of all principals and teachers of all schools, pub- 
lic and private, to report to the clerk of the board of edu- 
cation of the city, village, or township in which schools are 
situated, the names, ages, and residence of all pupils in at- 
tendance at their schools, together with such other facts as 
said clerk may require in order to facilitate the carrying 
out of the provisions of this act, and the said clerk shall 
furnish blanks for said purpose," etc. I may speak of 



304 THE STATE OF OHIO ^^5. THE REV. PATRICK F. QUIGLEY. 

that, perhaps, in connection with the motion made to set 
aside the verdict because it was against the evidence. We 
have read the testimony through very carefully, the whole 
of it, and, as we have already stated, we are clear in our 
opinion that the evidence showed the defendant to have 
been the principal of the school within the requirements 
of the statute, and was in fact such principal. 

We also have made an examination of the testimony in 
regard to the number of scholars that were attending 
school, as bearing on the question whether the testimony 
showed that there was sufficient seating capacity for the 
number of scholars ; and the results of our computations 
are such as to show that within the rule of law as laid 
down by the court, which we hold to be correct, there was 
seating capacity in the last week of April, 1890, for over 
12,000 children, and that the number of scholars desirous 
of attending school was less than 11,000, so that there was 
not only seating capacity for all those that came, but there 
was a surplus during all of that time whereby they could 
have received more. 

Having thus stated briefly, in this important case, the 
results at which we have arrived, it is our judgment that 
the judgment of the court of common pleas should be 
affirmed, and it will be accordingly so ordered. 

Thereupon the case was appealed to the Supreme Court 
of the State of Ohio, and the proceedings had therein are 
set forth on following pages. 



Iln tbc Supreme Court of tbe State of ®bio. 

Of the January Tetm, 1892. 



THE STATE OE OHIO 

vs. 

THE EEV. PATKICK F. QUIGLEY, D.D. 



AKGUMENT OE EDMUND F. DUNNE, 

of Counsel for Defendant. 

May it please the Court, this case is not merely a ques- 
tion between the state of Ohio and my client here, but is 
one which iuYolves the clearest personal rights of the four 
million or more people of the state of Ohio, and to a great 
extent of all the millions of people that now are and may 
hereafter be in all the States of this Union. This case 
raises the question as to what are the powers of the state 
and what are the rights of the people with regard to the 
education of their children ; whether the child belongs to 
the parent or to the state ; whether the state or the parent 
has the right to control its education ; in fine, whether the 
action of the Legislature here in the passage of the com- 
pulsory education law of Ohio is or is not warranted by the 
constitution of the state. 

It is the first time in our history that this question has 
been raised in any court in this country, — or from all 

305 



306 THE STATE OF OHIO VS. THE KEY. PATEICK F. QUIGLEY. 

I can learn in anj court of any country, — namely, as to 
whether or not the state has the right to control the educa- 
tion of children to the extent of compelling them to attend 
state schools against the wishes of the parents, with the 
right also to inspect, examine, control and practically, if it 
choose, to suppress, close and abolish all private schools, 
and also to invade even the home of the parent and forbid 
education there unless it be such as the state chooses to 
approve. 

There never having been such a case in this court 
before, there being no precedents to follow, and the matter 
being of such general and vital importance, I hope the 
Court will recognize the great difficulties under which I la- 
bor in the matter and will be as indulgent as possible in 
pardoning the somewhat irregular manner in which I find 
myself obliged to advance the arguments in support of the 
propositions which I ask to have considered in this case. 

The subject is a large one, and it is not easy to present 
it as bnefly as one might wish. 

For the better understanding of what I have to offer" I 
beg to make the following 

Statement of Facts. 

This statement is not intended to include all the facts 
in the case, but only such of them as relate to my argu- 
ment, which will be addressed to only three of the obj-ec- 
tions made by the defendant in this prosecution, viz., that 
the law is unconstitutional because it violates parental, 
conscience and personal-liberty rights in education. My 
colleagues will address themselves to the consideration of 
other objections, viz., as to the unconstitutionality of the 
law on other grounds, as to lack of jurisdiction of the court 
below, as to errors in procedure, and other objections, and 
will call the attention of the Court to other facts in con- 
nection with those objections. The facts in the case, so far 
as they concern this argument are as follows : 



THE STATE OF OHIO VS, THE EEV. PATRICK F. QUIGLEY. 307 

On April 25th, 1890, the Legislature of the state of Ohio 
enacted what is known as the Compulsory Education law 
of Ohio. The first section of that law commands that all 
parents, guardia-ns or other persons having under their 
care children from the age of eight to fourteen shall cause 
them to be instructed in reading, writing, arithmetic, geog- 
raphy and English grammar, and for that purpose shall 
send them to some public, private or parochial school 
twenty weeks in each year, or have them taught at home by 
qualified teachers in such branches as are usually taught 
in primary schools. 

Another section provides that the principals and teach- 
ers of all schools public and private must report at stated 
times to the Board of Education full lists of pupils, name, 
age, sex, residence and such other information as the state 
officers may require. 

The defendant in this case is a Catholic priest, having 
charge of St. Francis de Sales parish in the city of Toledo, 
and, as such, had a pastoral relation to the parochial 
schools of that parish. He did not make the reports in 
question, and was in consequence indicted by the Grand 
Jury, arrested, tried and fined for such alleged violation 
of that law. The trial was had in May 1891, in the Court 
of Common Pleas in Toledo, Pugsley, J. 

At that trial I asked the Court to instruct the jury that 
tlie law was unconstitutional, in that it was an unw^arranted 
infringement upon parental rights guaranteed by the Ohio 
constitution. 

Upon that request I made an argument which will be 
found printed herewith, pages 119 to 187. 

Also my argument in the Circuit Court will be found 
printed herewith, pages 188 to 231. 



308 THE STATE OF OHIO VS, THE KEV. PATRICK E. QUIGLEY, 



Summary of First Argument. 

In my first argument, I undertook to show : 

I. The origin, nature and extent of that body of law 
known as the Natural Law. 

II. That the constitution of the state of Ohio recognized 
the Natural Law as paramount over all other law in the 
state of Ohio, and that all natural rights are inviolable by 
any human authority. 

III. That the constitution of the state of Ohio enumerated 
some of these natural rights which must be held inviola- 
ble, but expressly declared that such enumeration should 
not be held to prejudice or deny others retained by the 
people. 

lY. That the right of the parent to control the education 
of his child was a natural right and therefore secured to 
him by the constitution. 

Y. That this right of the parent to control the education 
of his child was anterior to the existence of the state and, so 
far as the state is concerned, was original and exclusive. 

YI. That the law in question was an assertion on the part 
of the state of a right in itself to exercise supreme control 
in the matter of the education of children, which claim 
would be in violation of the exclusive right of the parent in 
that matter, and was therefore in conflict with natural law 
and the constitution of the state of Ohio, and therefore null 
and void. 

The learned judge of the court of first instance refused 
to give the instruction asked, and stated as a reason that in 
his opinion the law in question did not abridge the right of 
the parents to educate their children ; that it merely sought 
to enforce the duty ; that the law did not interfere with the 
control or management of private schools, but accepted at- 
tendance there in lieu of attendance in the state schools. 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 309 



Summary of Second Argument. 

In September 1891 we were heard in the case in the 
Circuit Court of the Sixth District. 

In my argument there I undertook to show — 

I. That the judge below had erred when he said, " The 
law does not interefere with the control or management of 
private schools." I pointed out wherein I claimed the error 
lay, and added : " This law cannot be defended on the claim 
that it does not interfere with parental rights or with the 
management and control of private schools.'' I further 
added : " It can be defended only on the ground that to 
the state and not to the parent belongs the right to control 
the education of the child." 

II. I then undertook to show that all states do not have 
the same rights in legislation; that with some states there 
is a union with some church, with others an absorption of 
the church by the state, with others a separation of the 
state from the church, with others a denial of all churches 
and religions, with others a recognition of the religion con- 
sequent upon acceptance of the natural law, and that the 
rights of citizens with regard to religion and conscience 
A^aried in these different states according to those various 
conditions, and that in consequence the right of the state to 
legislate against those citizens on questions of religion and 
conscience varied as those conditions varied. 

III. I undertook to show that the state of Ohio was a re- 
ligious state based on natural law, and that the constitution 
of the state of Ohio expressly declared that natural rights, 
conscience rights, and personal-liberty rights were sacred 
as against any legislative interference. 

lY. I then undertook to show that under either one of 
these last-named three heads, separately and independent- 
ly considered, the law was unconstitutional. 

Y. I then undertook to combat the claim that the state 



310 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

miglit resort to such legislation either for self-preservation 
or for the public good, closing with a list of authorities. 

The Circuit Court did not pass upon the questions treated 
by me, but declared that it would leave the constitutional- 
ity of the law to be determined by this Honorable Court. 

My previous arguments in the case are thus really re- 
ferred to this court by the court below. In those argu- 
ments I urged that the law was repugnant to three separate 
and distinct declarations of the constitution — one that all 
natural rights are inviolable ; another that rights of con- 
science shall be respected ; and a third that the people of 
Ohio should be free to seek and obtain their own happiness 
and safety. I have no further grounds of objection to urge 
here, beyond those three ; but it has occurred to me that I 
may be able to add some further reasons, illustrations and 
explanations in further support of those objections, where- 
by my understanding of the case may be more clearly 
brought to the notice of the Court. 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY, 311 



II. 

Parental Eights. 

*' All the world's a stage, 
And all the men and women merely players : 
They have their exits and their entrances ; 
And one man in his time plays many parts." 

The writer of those lines had in view merely the genera- 
tion in which he lived. In a larger sense the world is the 
great theatre of human action, and the divisions of the 
drama are spoken of as the ages of its life. There was first 
the mythical Golden Age, when, as the Knight of the Eue- 
ful Countenance declared, to gain one's sustenance nothing 
more was necessary than to reach out one's hands and 
receive from bounteous nature the sweet and savory fruits 
which it was everywhere offering to him. But, in historic 
times, we speak of many other ages : ages of stone, of iron, 
of brass, of silver, and of gold. Ours is an age of action, 
as have been so many before, but of action directed to an 
extent hitherto unknown toward wresting from the treasure- 
vaults of the world the means of personal comfort, pleasure 
and power. In this age, beyond all others, men cross the 
seas, traverse the lands, scale the mouhtains, go down 
in mines — anywhere, everywhere that promises a net re- 
sult of gain. To do this work, what is known as mere 
human knowledge becomes of indispensable importance. 
We had the theological and philosophical age, when the 
greatest human minds gave their best work to the study of 
the nature of man, the laws of his being, and the means of 
attaining to his supernatural end. Now the world chiefly 
studies the nature of substances, the laws of trade and the 
means of acquiring wealth and power. Ours is pre-emi- 



312 THE STATE OF OHIO Vi>. THE KEY, PATRICK F. QUIGLEY. 

nently the age of the plijisical sciences and of extended 
secular instruction. We liad for a while an age of instruc- 
tion as understood and directed by the church. There is 
demand now for an age of instruction as understood and 
directed by the state. The church demands religious 
instruction as the chief thing necessary, with the addition 
of so much of scientific instruction as may be reasonably 
required in each particular case. The state demands 
scientific instruction as the one thing required, rather pre- 
ferring that there should be no religious instruction 
at all, but claiming great credit for liberality if it per- 
mits its subjects to get such religious instruction as 
they can. Thus the people of our age are divided on 
this question into two great schools, the religious and the 
secular. Each of these schools recognizes that to secure 
instruction to any satisfactory result it is necessary to 
begin with the child and have him continually under 
control ; hence the great struggle for his possession, and 
thence the great question, to whom does he really belong, 
to. the parent or to the State ? 

As with all great parties founded on opposing principles, 
there are always a certain number of peculiarly organized 
minds which, while asserting the principles of one party, 
express a certain preference for the practices of the other; 
and because of the peculiar advantages offered by the secu- 
lar camp it gains to its side the greater number of these 
yielding natures ; but, on the whole, the lines are pretty 
sharply defined. 

The old orthodox religionists, who believe in God as the 
Creator of the world and of man, and as ruling it continu- 
ally through his Divine providence of both, assert that the 
child belongs exclusively to the parent, the family and the 
church, and that the state has nothing to do with its 
direction until it attains that age which emancipates it 
from family control, and that that age is not reached until 
the reasoning powers of the child become developed so as 
to at least nearly equal those of the normally developed 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY, 313 

man ; that therefore, until that age is reached, the education 
of the child and the control of that education belong to 
the parent, the family and the church as of natural right ; 
that the individual, the family and the church all existed 
before the state, possessed of certain inalienable natural 
rights, among which is this right to control the education of 
children, and that therefore none of these rights come 
from the state ; that the state as an organization came 
later than all these, and solely for the protection of those 
rights and to aid in the more perfect enjoyment of them : 
whence the State, though having the duty to aid and pro- 
tect in education, has no right to direct or control it. 

On the other hand, the secularists declare that all of 
this dlaim as to the existence of a great Creator, the created 
state of man, the existence in him of certain inalienable 
natural rights and the continuing providence of God in the 
affairs of this world, are all mere assumptions, some of 
them immaterial so far as this question is concerned, some 
of them plainly contradicted by the actual facts in the 
case ; that if there be such a Creator, and if He did create 
man, He created him primarily, at least, for this world and 
gave him all the faculties necessary for managing all his 
worldly affairs ; that the idea of a continuing Providence 
over the affairs of this world is inconsistent with the 
attributes claimed for that Creator ; that either He is omnis- 
cient and omnipotent or He is not ; if He be. He ordained 
all action of His creatures, animate and inanimate, by cer- 
tain immutable natural laws, rendering His continuing 
providence unnecessary and illogical; therefore man is 
left free to control this world the best he can, and there is 
imposed on him the duty of managing his social affairs 
here to the best of his ability ; if there be no such omnis- 
cient and omnipotent Creator, then man is, without any 
question, free ; therefore in any event he is free to rule the 
affairs of this world and must rule them, and thus man in 
the aggregate, or in other words the state, has not only 
the right but also the duty to use all means necessary or 



314 THE STATE OF OHIO VS, THE EEV. PATRICK F. QUIGLEY. 

proper for the attainment of the general social good ; that 
education of the masses is necessary ; therefore the state 
has supreme control of such education ; that there are no 
such things as men's natural rights ; that man can have no 
rights as to other men until he is in a state of society with 
them ; that when a state of society is organized he has no 
rights as to fellow-members of that society except such as 
the society has agreed he shall have ; that therefore it is 
society itself, or the state in that society, which fixes what 
rights men shall have ; that therefore the only rights men 
have as ^o each other are legal rights as fixed by the state, 
and that these rights may be enlarged, diminished, altered 
or changed by the state as the interests of society require j 
that therefore it is always legitimate for the state to 
determine what kind of general education and how much of 
it is necessary for the safety of the state and the good of 
its people, and that it may compel such education. 

Now, if the Court please, I want to say right here that 
if I thought it necessary in this case for me to convince 
the adherents of the secular school that in this great 
contention the church is right and they are wrong, I 
would not have any great hopes of success. I know I can 
bring forward arguments in support of the orthodox claim 
which I think ought to convince people that the church is 
right. I know I can answer the secular arguments in a 
way that I think ought to convince people that the secu- 
larists are wrong ; but the secularists believe it to be to 
their interest to deny the orthodox claim, and a great 
philosopher has said that if men thought it to their interest 
to believe so, many of them would feel that they could 
honestly say that it was not so entirely certain that two 
and two make four as some people seem to think. 

Fortunately for my claim, here, I am not obliged to 
prove or disprove anything about the existence of natural 
rights. That whole question was discussed and settled at 
the time our civil state was organized. Our American 
States date their civil existence from the moment they 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 315 

declared their independence on the 4th day of Jnly, 1776. 
In that declaration it was recognized that all things in 
nature came from nature's God, the Sovereign Lord of all ; 
and that man has natural rights which come to him by 
endowment directly from his Creator. The constitution of 
Ohio is based on that declaration and recognizes and con- 
firms all those rights as being not only inherent but also 
inalienable. I beg to refer here to my first argument in 
this case for the full proof of these claims. 

All I have to do now to make my case here is to show 
that parental control of the education of children and 
youth is one of those natural rights. If I do that, the pre- 
sumption is that it is inalienable. He who would curtail it 
in any way must show an indisputable title for so doing. 

To begin with, I think I may claim that this right is 
practically admitted by all. It is directly admitted by all 
except the ultra-secularists whom I have described. It is 
practically admitted, even by them, because almost univer- 
sally they seek to justify their encroachments on it by 
alleging that such interference is necessary for the safety 
of the state and the general good of society. I shall there- 
fore be somewhat brief in presenting the arguments in 
favor of the existence of this right as a natural right, and 
devote most of my time to an effort' to show the insuf- 
ficiency of the arguments brought forward by the secular- 
ists in justification of their encroachments on this right. 



CoNTEOL OF Education, 

I. It cannot be necessary for me to prove tliat the duty 
of educating children rests first upon the parents. All the 
English and American legal authorities declare that to be 
so by natural law. 

Wherever there is a duty there is a corresponding right. 
Now if the duty to give education rests first upon parents 
by natural law, then the right to give that education rests 



316 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

first witli tlie parents by natural law ; therefore parents 
haTe the first, natural right to educate their children. 

II. He who has the duty and the right to do a thing 
has necessarily the right to the means necessary to the 
performance of that duty. Situated as most families are, 
there comes a time when individual action in each par- 
ticular family is not sufficient for the education of the 
children : concerted action of several families is necessary ; 
a common place to which a number of children may be 
sent with special teachers to instruct them is necessary. 
In other words schools more or less private, more or less 
public, are necessary. Therefore parents have a natural 
right to establish schools and provide teachers for their 
children ; and having that, they must have the right to 
control those schools and the teachers and the programmes 
of study in such schools. Therefore parents have a natu- 
ral right to establish and control private schools for the 
education of their children. 

III. He who has the duty of educating and the right to 
control the means of educating must be free from the in- 
terference of others in the performance of that duty and 
the use of those means. This is necessarily so, because if 
any one else might interfere, it could be to order something 
which the parents would not regard as proper, and there- 
fore that would be to take from them the control of educa- 
tion. But that must not be ; therefore the right to control 
means the right to exclusive control ; therefore parents 
have a right to the exclusive control of the education of 
their children. 

Secularists object that the church does not admit 
this ; that it demands for itself the right of superior con- 
control, and that therefore the state may do so likewise. 
Not so ! Education comprises religious instruction and 
secular instruction. The church claims no authority even 
over its own people in the matter of secular instruction, 
except that it must be given in connection with religious 
instruction and must not contain anything prejudicial to 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 317 

faith or morals. The state is free to assert the same claim, 
even as to its own affairs. The church says there shall be 
nothing in secular instruction treasonable to the church. 
The state may insist that there shall be nothing in secular 
instruction treasonable to the state. Aside from attacks 
upon its own constitution the church leaves its people free 
in the matter of secular instruction. The state must do the 
same. The church claims control over religious instruction 
because of its divine mission to care for it. The state has 
no such mission and makes no claim as to religious in- 
struction. Therefore there is nothing inconsistent in the 
claim of the church to control religious instruction, and 
the proposition that parents have exclusive control of sec- 
ular instruction. Neither is it true that the claims of the 
church are inconsistent with parental liberty. A person 
who has the right of exclusive control may take advice and 
follow direction if he wish, without thereby losing his 
right of control. If he listens to the advice of the church, 
it is because in the exercise of his liberty he chooses to do 
so. He has the power of withdrawing himself from that 
church any time he chooses. Therefore a parent may con- 
trol the education of his children as he chooses, subject to 
a reckoning with the church as to irreligious training, sub- 
ject to a reckoning with the state as to treasonable teaching. 
lY. Although parents have exclusive control of the 
secular instruction of their children, it does not follow 
from that that they may refuse to give their children any 
such instruction, or any less amount than may be properly 
required in any particular case. The right to give does 
not in this case include the rjght to withhold, because the 
rigJit to give is, in this case, based upon the duty of giving. 
One may have a right to give surplus money in charity if 
he choose, even beyond his duty in that respect ; but even 
as to charity, when one gets beyond what is his duty in 
that respect, he has not then the right to give further of 
his money unless that money be free from superior de- 
mands upon it — the claims of his family, of his creditors. 



318 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

and the like. And the same in education. Even in the 
matter of education, beyond what is his duty toward his 
child, all things considered, a father has no right to expend 
money on the education of his child unless there are no 
superior claims on that money : he may not spend money 
in college fees for a favorite son if thereby he have none 
left to buy proper food or necessary medical attendance 
for his wife. There is a due proportion in all these things 
which must be observed. The father as administrator of 
the family must be left free to administer the goods of the 
family as in his judgment will be best for all and just to 
all, subject to review, however, in case it can be shown he 
is not doing his duty. Giving secular instruction to his 
children is only one of the duties of the father. It is his 
duty to also provide them with air, light, exercise, food, and 
clothing, and the privilege and benefit of social intercourse 
with the rest of the family and with other people, with a 
view to the natural and proper consequences thereof ; but 
as no reasonable state would undertake to regulate all 
these things by general law, fixing an absolute minimum 
standard as to how much of all tjiese other things every 
father must under all circumstances give to every one of 
his children at all times and in all places and amid no 
matter what surroundings, so no state may reasonably 
undertake to do that in the matter of secular instruction. 
There is a way of reaching and correcting neglect in all 
these things, but that way is not by the sweeping process 
of general precept and general minimum requirement en- 
forced by summary administrative process. Such neglect 
may be a crime against society. If it be, then it is to be 
inquired into and reprehended in the same way as with 
other crimes, by judicial inquiry into each particular case 
as it arises. The right of the state to punish for neglect of 
duty does not include the right of the state to itself per- 
form the duty ; and where what is the duty varies according 
bo the particular circumstances of each case, the state may 
not by general law say that what would be a proper per- 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 319 

formance of the duty in a particular case shall be the rule 
of performance in all cases. 

Y. If parents have a natural right to establish and con- 
trol private schools for the education of their children, the 
state has no right to provide by general law for public in- 
terference in those schools for the purpose of inspecting, 
regulating and prescribing programmes of study in the 
matter of secular instruction therein. The law in question 
here does undertake to do* that, and is therefore unconsti- 
tutional, null and void. 

I do not stand alone in claiming that this law is not only 
an invasion- of the right of private, schools, but is in effect 
a claim on the part of the state of the right to abolish all 
private schools if it so desires. This law is so very new 
in this country that we cannot expect to find many public 
declarations already made in repudiation of it, but there 
are already some,, and more will come in due time. 

Treating of a similar law in Wisconsin, so far as state 
control of private schools is concerned, a United States 
senator and ex-cabinet minister writes in the Forum as fol- 
lows : 

" But there is another class with whom liberty and 
equal rights of all is no phrase of demagog;f, but a living 
faith. These are demanded because to be less than free is 
slavery, the portion only of the base and ignoble ; and be- 
cause, in the calmest reason, individual liberty is the main- 
spring of human development and the corner-stone of 
society's highest estate. To such it matters not whether 
the principles and practice of arbitrary interference with 
the opinions and privileges of individuals come from hered- 
itary monarchs or elective majorities ; whether in the arro- 
gance of power or disguised under sweet covering pretexts ; 
whether by gross usurpation or insidious encroachment. 
Though the former may arouse a sharper resentment, the 
latter is known for the more dangerous aspect; but, in 
whatever form advanced, clear judgment demands instant 
resistance and repulsion. . . . 



320 THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 

" This legislation must have for its support two cognate 
principles of vital importance to men : first, the right of 
public authority to prescribe the course and subjects of in- 
struction in schools maintained as purely private estab- 
lishments, without public cost, by parents who seek to 
educate their children after the dictates of conscience ; and 
secondly, the right of the state to interfere between any 
parent and child, and, in loco parentum, to assume and 
control the education of all chiMren. 

" The consequence in principle is inevitable. If public 
authority may prescribe some branches of study, so it 
may prescribe others or forbid any. In short, by the same 
right, the private school may be required to conform its 
course of study to that of the public school ; even religious 
training may be proscribed and the objects which parents 
seek in the education of their children by private schools 
be entirely defeated. 

" Since also the inquiry may be committed thus to pub- 
lic authority whether a private school shall be regarded as 
a legal school, it follows that visitation and inspection may 
be given to appropriate agents and officers. Thus the logi- 
cal possibilities of the power so asserted involves every 
essential of f*ll control, perhaps of direct abolition of the 
private schools and only the caprice or discretion of au- 
thority marks the point of forbearance. 

" Nor is the right to substitute public for parental gov- 
ernment less plainly implied by this legislation. That 
every parent may be compelled to send his children to a 
school in which the public authority fixes the subjects and 
mode of instruction for any length of time, leaves it to the 
state to fix the period and exhaustively direct the system 
of education, implies power to deny the parent any share 
in it, and, in necessary consequence, is but the Spartan 
doctrine of public right to assume the parent's place in 
moulding the character and destiny of the young. Thus 
the principle asserted is no less than one of its advocates 



THE STATE OF OHIO VS, THE REV. PATRICK E. QUIGLEY. 321 

has phrased it : * The state may even abolish the relations- 
between parent and child.' 

" The point is . . . whether, as matter of fundamental 
right, the Legislature may prescribe what shall or what 
shall not be taught in private schools, or take the child 
from the parent, however intelligent or faithful, to teach 
what the Legislature shall think most beneficial to him or 
desirable to the public that he should know. . . . 

" If the state may absorb the private schools within its^ 
system, the available agencies by which the parent can^ 
except in few cases, practically furnish any other than the 
public course of education to their children are so substan- 
tially withdrawn that their control over the subject may 
well be said to be overthrown. 

" To take, or threaten to take from them control of their 
private schools ; to interfere at all with the course of in- 
struction which they would have pursued in them, while at 
the same time they without reluctance meet their full share 
of taxation for public schools, and in every relation faith- 
fully discharge the duties of useful citizenship, — must surely 
be admitted to deny them substantial rights, of a nature to 
make the deprivation peculiarly humiliating. 

" Whatever be the shortcomings of parental compared 
with ideal education, whatever the inferiority of private to 
public schools (granting these for argument's sake), such 
evils are as nothing to those which must follow the invasion 
of the rights of private judgment, parental control, and the 
family circle. . . . But other demerits must be reckoned 
on in the forecast of results. For, where will be found 
among free-born men the father worthy of the gift of chil- 
dren who will yield but to force the right to direct their 
nurture and education ? 

"Plainly, this authority, which subjects every family 
alike to the right of public visitation, is quite another thing 
from that proper police power which is exercised in the pub- 
lic care of orphans, abandoned children and the offspring of 
the criminal and depraved. Nor is it necessary to say to 



322 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

any intelligent person that the rightful power of the state, 
within limitations not here requiring mention, to suppress 
conspiracies, or any criminal propaganda of schemes against 
the peace and order of society, even if denominated ' schools ' 
by the offenders, is not to be confounded with, and gives 
no reason for, public interference with the methods of edu- 
cation by the private schools of good citizens. 

" The demarcation between the principles of the criminal 
law and the principles of private right is too clear in reason 
and long-accumulated usage to excuse a confusion of ideas 
from different sides of the boundary. The house of the 
citizen may, under proper warrant, be searched for the evi- 
dences of crime, or in pursuit of a criminal, but in entire 
consistency with the law which fortifies it as his castle in 
recognition of the inviolability of the private rights of 
home." (U. S. Sen. Yilas, in Forum, Oct. 1891, pp. 196- 
207.) 

YI. The state has a right to aid in education, but 
it may not, under the pretence of extending such aid, 
establish public schools in opposition to private schools, 
fix a high standard of instruction in such public schools, 
and ordain that whatever private school fails to attain to 
that standard shall be closed and the pupils sent to the 
state schools, thereby setting up by the state a monopoly 
in education. 

The law in question takes a long step in the way of 
doing this, and asserts the right to go farther in the same 
direction, and is therefore based upon an indefensible 
principle and must be rejected. 

It begins by saying that all parents must cause all 
children under their control to be instructed in reading, 
writing, arithmetic, English grammar and geography ; 
that this instruction shall be given for twenty weeks in 
each year, and continue for eight years, viz., from the age 
of eight to sixteen. Fancy, now, to what a high standard 
of proficiency children may be brought in arithmetic with 
eight years of training in a great public school with the 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 323 

most skilled of teachers and provided with all possible 
appliances for illustrating the subject. They will not stop 
with long-division, nor fractions, nor decimals, nor interest, 
proportion or percentage, nor square-root, nor cube-root, 
nor aliquot parts, but will go on and on to mathemati- 
cal realms either unknown or forgotten by men in the 
highest places in professions other than mathematical. 
And what studies in grammar ! what acquisitions in ety- 
mology, syntax and prosody ! and what explorations in 
geography ! And all of this every poor man earning his 
bread with his manual labor alone, must give at home, or 
in a private school supported by himself or others, and to 
all of his proverbially numerous children until each one is 
sixteen years of age, or else see them taken from his 
control and thrust into the great monopoly school estab- 
lished by the state ! 

But this is not all. This law has expressly left the 
door open for further studies by declaring that the father, 
to be free from the grasp of the monopoly in education, 
must give, at home or in a private school, instruction in all 
these branches and in such others as are usually taught in 
primary schools, meaning thereby the primary schools of 
the state — and by primary is meant, I suppose, all under 
the grade of secondary, and in education it is understood 
that secondary begins with the college. Certainly it must 
mean that he shall cause his child to be taught at home 
or in private schools, up to the age of sixteen, all the 
branches that are taught in the public schools up to the 
same age, which covers the grammar and high-school 
courses. Now, what branches are taught even in the 
grammar schools in different places at present ? Why, 
already they are teaching in such schools, in addition 
to the five branches above named, the history of the 
United States, drawing, hygiene, botany, physiology, civil 
government, the effects of alcohol on the human system, 
modelling from clay, bookkeeping, astronomy, natural phi- 



324 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

losopliy, algebra, elocution, calisthenics, gymnastics, and 
mythology. It is now proposed to add still other studies. 
The New York Evening Post of Nov. 14, 1891, has a 
rej^^ort of a proposed extension of studies for the grammar 
schools of New England. The recommendations are by the 
College Presidents of New England at a meeting held at 
Brown University, and are as follows : 

(1) The introduction of elementary natural history into 
the earlier years of the programme as a substantial subject, 
to be taught by demonstrations, and practical exercise 
rather than from books. 

(2) The introduction of elementary physics into the 
later years of the programme as a substantial subject, to 
be taught by the experimental or laboratory method, and 
to include exact weighing and measuring by the pupils 
themselves. 

(3) The introduction of elementary algebra at an age 
not later than twelve years. 

(4) The introduction of elementary plane geom'etry at 
an age not later than thirteen years. 

(5) The offering of opportunity to study French, or Ger- 
man, or Latin, or any two of these languages, from and 
after the age of ten years. 

On which a writer in the Post remarks : " Presidents 
Eliot of Harvard and Capen of Tufts, in published inter- 
views, have approved the system proposed. President 
Shafer of Wellesley gives it a good word, and other educa- 
tors seem to be favorably disposed towards the innovation." 
He further adds : " It is to be remarked, in the first place, 
that the representatives of the colleges do not seem to be 
as familiar as they ought to be with the course of study 
now followed in the public schools, taking Massachusetts 
for illustration. As to the first two suggestions, they have 
been in practice for a considerable time already in some of 
the schools of the state, and the State Board of Education 
is using all its influence to extend the studies as fast as 
possible in all the public schools. What are called * na- 



THE STATE OF OHIO VS, THE KEY. PATRICK F. QUIGLEY. 325 

ture studies ' are becoming more popular, and are extended 
every year. In tlie city of Quincy they have been taught 
several years, and with remarkable success. As to the 
second specification, what is called ' elementary science ' 
has also been introduced, though it is in the same practical 
way adapted to the years of the children, and it is used to 
fyiYe them mental training as good as they would get by 
the old-fashioned way of studying — better, the school au- 
thorities believe. As to the fourth specification, something 
equivalent to it is now in operation in the public schools." 

All of this chimes in well with the announcement pub- 
licly made by prominent advocates of the public-school 
system in New England about a year ago, that it was now 
proposed to crush out the parochial-school system of 
Catholics by spending all possible money on the public 
schools, so that the parochial schools could not possibly 
keep up with them, and would therefore be compelled to 
close. , As to this, it should be observed that fully one 
sixth of that money is taken by tax from the parents who 
patronize the parochial schools ! And this is the way pub- 
lic-school men execute a public trust reposed in them as to 
public funds ! And this is the moral outcome of public- 
school training ! Instead of aiding and encouraging all 
schools founded for the education of children and youth, as 
they are in duty bound to do, they deliberately seek to 
crush all such schools in order that the state may have a 
monopoly of education. 

Now those men profess to have a high regard for John 
Stuart Mill as a political economist. What do they think 
of the following utterances of that writer ? 

" One thing must be strenuously insisted on, that the 
government must claim no monopoly for its education 
either in its higher or lower branches ; must exert neither 
authority nor influence to induce the people to resort to its 
teachers in preference to others, and must confer no pecu- 
liar advantages on those who have been instructed by 
them. . . , It is not endurable that a government should 



326 THE STATE OP OHIO VS. THE REV. PATRICK F. QUIGLEY. 

either in law or in fact have a complete control over the 
education of the people. To possess such a control and 
actually exert it is to be despotic. A government which 
can mould the opinions and sentiments of the people from 
their youth upwards can do with them whatever it pleases " 
(Mill, Prin. Polit. Econ., book v. ch. ix. § 8). (Italics mine.) 

But that is not all. It is now proposed to develop the 
calisthenic and Swedish-movement exercise into a regular 
system of physical education, and make that physical edu- 
cation compulsory. A distinguished writer in a late num- 
ber of the North American Beview sets out the whole 
scheme in detail, including the keeping of a record of the 
quarterly measurements of the growth and development of 
the various and principal parts of the bodies of the youth 
of both sexes, and who by state compulsory law shall 
be compelled to submit to these measurements, and let 
the same become a matter of public record. Did I not 
say in my second argument that if these fanatics were 
not checked by the courts they would soon bring our 
women to the subjections of pagan Rome ! 

Does any one say it is not right to bring in magazine ' 
articles here, and make the advocates of compulsory educa- 
tion responsible for their unauthorized utterances ? Well, 
it does look a little far-fetched, I confess ; but I happen to 
have before me a pretty good-sized book, entitled " Com- 
monwealth of Pennsylvania. Vetoes by the Governor of Bills 
passed by the Legislative Session of 1891." On pages 5 and 
6 of that book I find an act entitled " An Act relating to 
the study and practice of physical culture in the public 
schools of all cities of the Commonwealth." The first sec- 
tion of that aqt is as follows : 

" Sec. 1. Be it enacted, etc., That physical culture, which 
shall be so pursued as to include calisthenics, shall be 
included in the branches of study now required by law 
to be taught in the public schools, and shall be introduced 
and practised as a regular branch of study by all pupils in all 



THE STATE OF OHIO VS. THE REV. PATKICK F. QUIGLEY. 327 

departments of the public schools of all cities of the Com- 
monwealth." (Italics mine.) 

Sec. 2 provides, among other things, that any school 
failing to comply shall lose its share of the school fund, 
etc., etc. 

There's the beginning. Make it one of the branches to 
be taught in the public schools " in all departments,'' and 
then the private schools must give the same instruction or 
be closed, and the children taken to the public schools. 
After the principle of compulsory physical culture is once 
established, then it will be easy to add to the course, and 
then the measurements of development must necessarily 
follow, and of course the public record of the same. This 
bill passed both houses of the Pennsylvanipj Legislature, 
and was sent to the Governor for his approval. But the 
Governor was Eobert E. Pattison, and on April 16, 1891, 
he returned the bill to them without approval, saying to 
them among other things : 

" The hest results can be attained by permitting the 
tvidest exercise of the principle of local control which per- 
vades the school system of our commonwealth, and by 
allowing the people of the various school-districts to regulate 
their own local affairs, and to prescribe the courses of study 
which may seem best to those whom they elect to control 
their schools." (Italics mine.) 

There's the true doctrine ! Let the state aid and pro- 
tect the schools, but let the parents in the various school- 
districts prescribe the courses of study they wish taught 
to their children. And this doctrine is announced by the 
Governor of the great state of Pennsylvania, not casually, 
nor incidentally, but in an official declaration to his col- 
leagues in the Legislature. 

There has been much comment as to my contention in 
this case, to the effect that it is an attack on the public- 
school system ; but the very essence of the claim I make is 
simply this, that parents should control the education of 
their children — that to the Darents and not to the state 



328 THE STATE OF OHIO V.S, THE KEY. PATRICK F. QUIGLEY. 

belongs tlie right to prescribe tlie course of study. " The 
very head and front of my offending hath this extent — no 
more." And yet here is now the Governor of the State of 
Pennsylvania making the same declaration, and almost in 
the same words that my authorities so uniformly state it ! 

I will now close this part of my argument, feeling that 
though I have not stated all the arguments that go to sus- 
tain my claim, nor any of them in the best form, yet that I 
have stated enough to show that parents have a natural 
right to the exclusive control of the secular instruction 
which shall be given to their children, and that this law 
is unconstitutional because of being in violation of those 
parental rights. 

I will next undertake to show that the law in question 
is unconstitutional for an entirely different reason, namely, 
for that it violates conscience rights guaranteed by the con- 
stitution of the state of Ohio. 



THE STATE OF OHIO VS, THE KEY. PATRICK F. QUIGLEY. 329 



III. 

Conscience Eights. 

I said in my second argument that this la^ wasi WiCon- 
stitutional because it violated rights of conscience on the 
part of parents in the matter of education. (Brief Circuit 
Court, pp. 22-28.) 

The right of conscience means that a man shall have 
the right to act according to the dictates of his ov/n con- 
science ; that is, that he shall not be compelled to do any- 
thing which his conscience tells him would be against the 
commands of God for him to do. This is a right secured 
to all men under the natural law. It is also secured to tho 
people of Ohio by an express provision in the constitution 
of their state, which declares that rights of conscience ar^ 
natural rights, which must be held sacred and inviolable. 

I. Von Hammerstein, an eminent authority as to wha? 
is the teaching of the Catholic Church on this point, in hir 
work *' Kirche und Staat " (" Church and State)," after b 
full exposition of principles, closes with this question : "May 
Catholic parents send their children to schools the supreme 
control of which is in the hands of a non-Catholic or anti* 
Catholic government ?" He then answers it as follows : 
" In the first place, it is manifest that parents cannot expose 
their children to the danger of losing their faith and inno- 
cence. Eather should they make the greatest material 
sacrifices, pay fines, emigrate, etc. ..." After showing that 
the presumption is that attendance by Catholic children at 
such schools would be injurious to their faith, he says : 
^* It follows therefore that Catholic parents may not send 
their children to such schools, unless in particular cases 
that piesumption is disproved," (Von H., etc., pp. 153-163.) 



330 THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 

II. It is of public record in this country, established by 
the government census reports, that about one sixth of the 
people of the United States belong to that form of religion 
known as the Catholic Church. It is likewise a matter of 
record that about one eighth of the people of Ohio belong 
to that Church. It is likewise matter of record that this 
Church claims to have absolute authority to decide for its 
members w^hat line of conduct they are in conscience bound 
to follow, in matters affecting faith and morals. 

III. It is matter of public record that the Bishops of that 
Church met in national or plenary council in the City of 
Baltimore in the year 1884, and promulgated certain decrees 
for the government of that Church in this country, among 
which were decrees which I translate as follows : 

" a. We enact and decree that attached to each and 
every church, where such does not yet exist, within two 
years from the promulgation of this council, a parochial 
school shall be erected and perpetually maintained, unless 
the bishop, on account of grave difficulties, should judge it 
necessary to defer the erection. 

" h. That the priest who by his grave neglect prevents 
within that time the erection or support of such school, or 
w^ho after repeated admonitions from the bishop does not 
provide for the erection and support of such school attached 
to his church, deserves to be removed from that church. 

" c. That the mission or parish which fails to assist the 
priest in maintaining and erecting such school, so that on 
account of its supine neglect the school cannot exist, is to 
be reproved by the bishop, and to be induced by the most 
efficacious and prudent means at his disposal to contribute 
the necessary funds. 

" d. That all Catholic parents are bound to send the^r 
children to parochial schools unless either at home or in 
other Catholic schools the Christian education of the same 
is sufficiently and evidently provided for, or unless for suf-' 
ficient reason, approved by the bishop, and with suitable 
cautions and remedies (for the preservation of faith and 



THE STATE OF OHIO VS. THE EEV. PATEICK F, QUIGLEY. 331 

morals), they are permitted to send them to other schools." 
(Decreta Cone. Bait. Ill, tit. v. § 1, 199, p 104. John 
Murphy & Co., Baltimore, 1885.) 

IV. These decrees of the Third Plenary Council of the 
Bishops of the Catholic Church in the United States are 
merely supplemental to and confirmatory of the decrees of 
the First and the Second Council of the same kind by the 
same bishops held in the preceding half century in this 
country and of all the legislation of that church in all its his- 
tory prior to 1884. It has always been held by that church 
that the education of children and youth is a religious 
function, exclusively under the control of the Church so far 
as religious matters are concerned ; and that while the par- 
ent has the right to say what secular instruction his child 
shall receive, that secular instruction can be received only 
in connection with religious instruction, and either under 
the control or with the sanction of the Church; and it claims 
this right of supervision and control by virtue of a divine 
commission, by which it was authorized and commanded by 
God Himself to take upon itself the office of teacher to all 
its members wheresoever found. 

Y. It is the custom in the Catholic Church, a custom 
hardly ever left unobserved, for each bishop to issue a pas- 
toral letter to his people once every year, about the begin- 
ning of the season of Lent, reminding them of their duties 
in general, and specifically as to whatever dutj^ seems to be 
particularly incumbent on them at the time by reason of 
any special condition of things then existing. 

VI. That this doctrine of the Third Plenary Council has 
always been the teaching of the Catholic Church in this 
country may be evidenced by referring generally to those 
pastorals, particularly those published within the last twenty 
years. The only one I happen to have at hand just now is 
that of His Eminence Cardinal Gibbons, issued in 1883. 
He repeats the universal teaching of the Catholic Church, 
that secular instruction must not be separated from re- 
ligious instruction, and that, therefore. Catholics cannot in 



332 THE STATE OF OHIO VS, THE REV. PATEICK E. QUIGLEY. 

conscience send their children to schools where no religions 
instruction is given. " The religious and secular education 
of your children," he says, addressing his people, " can- 
not be divorced from each other without inflicting a fatal 
wound upon the soul. The usual consequence of such a 
separation is to paralyze the moral faculties and to foment 
a spirit of indifference in matters of faith. Education is to 
the soul what food is to the body. The milk with which 
the infant is nourished at its mother's breast, feeds not only 
its head, but permeates also at the same time its heart and 
the other organs of the body. In like manner the intellectual 
and moral growth of your children must go hand in hand. 
Otherwise the education is shallow and fragmentary, and 
proves often a curse instead of a blessing. Piety is not to 
be put on like a holiday dress, to be worn on state occa- 
sions, but is to be exhibited in our conduct at all times. 
Our youth must put in practice every day the command- 
ments of God and the precepts of the Church as well as the 
rules of grammar and arithmetic. How can they famili- 
arize themselves with these sacred duties if they are not 
daily inculcated. Guizot, an eminent Protestant writer 
of France, expresses himself so clearly and forcibly on this 
point that we cannot forbear quoting his words : * In 
order,' he says, ' to make popular education truly good 
and socially useful, it must be fundamentally religious. 
... It is necessary that national education should be given 
and received in the midst of a religious atmosphere, and 
that religious impressions and religious observances should 
penetrate into all its parts. Eeligion is not a study or an 
exercise to be restricted to a certain place or a certain 
hour : it is a faith and a law which ought to be felt every- 
where, and which after this manner alone can exercise all its 
beneficial influence upon our minds and our lives.' " Im- 
mediately after citing this the Cardinal goes on to say : " The 
catechetical instructions given once a week in our Sunday- 
schools, though productive of very beneficial results, are 
insufficient to supply the religious wants of our children. 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 333 

They should, as far as possible, every day, breathe a healthy 
religious atmosphere in those schools, where not only their 
minds are enlightened, but where the seeds of faith, piety, 
and sound molality are nourished and invigorated." He 
then warns his people that sending their children to 
schools where their religion is not taught will cause them 
to lose their faith. After speaking of the many such losses 
already experienced, he says : " Whence arise these de- 
fections from the faith? The cause is easily explained. 
The child's early Christian education is neglected by 
his parents. He is sent to a school where his religion 
is ignored, or held up to ridicule, — and ridicule makes 
cowards of the most of us. He has no knowledge of his 
catechism, which would enable him to detect the utter 
groundlessness of the charges brought against his faith; 
and the charges are so often repeated that he at last be- 
lieves them to be true. He is ignorant of the Mother that 
gave him spiritual life. He despises her whom he should 
love, and goes forth into the world to embrace the first sect 
which chance or proselytism throws in his way, or which 
favors his inclinations and his temporal interests." And 
then the Cardinal adds : " From the foregoing remarks 
the conclusion is forced upon us, that Catholic parochial 
schools must be established and fostered if we would pre- 
serve the faith of our children." (Cardinal Gibbons, 
Pastoral Letter, Piet & Co., Bait. 1883, pp. 11-16.) 

YII. For the purposes of this argument it does not 
matter whether the reasons given by the Cardinal for his 
conclusion as above be accepted by this Court or not. "When 
this Court reviews a case and reaches a conclusion 
thereon, it announces its conclusion and gives its rea- 
sons therefor. Now so far as the parties affected are 
concerned it does not matter whether the reasons given 
by the Court be good or not ; the decision stands of 
authority and is of binding force, no matter what the 
reasoning is. And so it is in the Catholic Church, so far as 
the parties are immediately concerned, when a Bishop de- 



334 THE STATE OF OHIO VS. THE REY. PATRICK F. QUIGLEY. 

cicles a question for his people in a matter where faith and 
morals are concerned, so long as that decision stands un- 
reYersed by superior authority. They understand that he 
is diYinel}^ appointed to rule oYer them, and to teach, in- 
struct, direct, and command them in matters of faith and 
morals ; they belie Ye this and act upon it, as a decision 
binding them in conscience. That is the reason why there 
is now exhibited in this country a proof of the power of 
conscience in human affairs of a magnitude nowhere else 
equalled in the ciYilized world. That is the reason why the 
Catholics of this country pay their pro rata share, dollar for 
dollar, with any one else here into the colossal fund raised 
for carrying on the great public-school system of this 
country, and then, because conscience forbids, deny them- 
selYes all benefit of that system of schools which belongs to 
them as much as to any one else, and turn round and build 
up a system of their own, which already, after only a few 
years effort numbers oYer eight thousand schools, educat- 
ing nearly seYen hundred thousand children, and which 
will soon, Yery soon, number ten thousand schools with a 
million children. 

YIIL The American mind cannot tolerate any eYident 
instance of serious injustice. The adYocates of the state- 
school system are restiYO under this glaring, this monu- 
mental proof of its gross injustice to so many millions of 
our people„ They would fain win these people OYer to the 
acceptance of the state system of purely secular schools, 
and to this end they use eYery means known to secularists 
in our day to induce the abandonment of their parochial 
schools; and finding all such means fail, they finally declare 
that these terrible proofs of the inefficiency and injustice 
of the state-school system shall be destroyed. 

They say : " Those schools must be destroyed. If we 
may not proceed directly and destroy them absolutely, we 
will proceed indirectly, and by Yisitation, regulation, and 
administration we will destroy their present character ; 
we will so destroy in them all that giYes the reason for 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 335 

their separate existence tliat they shall become to all 
intents and purposes state schools like the others, and 
then we will incorporate them into our state system, under 
our management and control, and thus this terrible pro- 
test of a million children passing by the gorgeous state 
schools, in which their education has already been paid for 
by their parents, to seek instruction elsewhere, because 
the state schools are purposely so constructed that they 
cannot use them without renouncing their religion, will be 
removed." 

IX. I have spoken of the declarations of Catholic 
bishops ; but there are other utterances instructing the 
conscience of Catholics in this matter. Catholics have an 
authority higher than that of their bishops, their arch- 
bishops, or their cardinals — the one who names and com- 
missions all of these, — the visible head and ruler of their 
Church. In a Brief to the Archbishop of Fribourg, July 
14, 1864, Pius IX., after reviewing the danger of godless 
schools in general, expressed himself concerning the com- 
mon or primary schools as follows: "As common schools 
have been instituted mainly for the religious education 
of the people, 'to cherish Christian piety and morality, 
they have therefore always deservedly and with perfect 
right claimed the whole care, solicitude, and watchfulness 
of the Church above all other educational institutions. 
And therefore the designs and endeavors of excluding the 
Church's authority from the common schools proceed from 
a most hostile disposition to the Church, and from the 
desire of extinguishing the divine light of holy faith in the 
nations. Wherefore the Church, which first founded those 
schools, has always bestowed the greatest care and zeal 
upon them, and considered them as the most important 
department of her authority and jurisdiction ; and any 
separation of them from the Church cannot but be produc- 
tive of the greatest loss to the Church and to the schools 
themselves. All those who would have the Church resign 
or withdraw her salutary direction of the popular schools 



336 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

demand nothing less than that the Church should act 
against the behests of her Divine Founder, and neglect the 
most important charge committed to her of procuring the 
salvation of men. 

"Assuredly, in whatever place or country these most 
dangerous schemes of excluding the Church from the 
schools should be attempted or put into execution, and the 
youth should be lamentably exposed to the danger of suf- 
fering loss in their faith, the Church is not only bound to 
use all her zeal and efforts, and spare no pains at any 
time that the young should receive the necessary religious 
education, hut is also hound to admonish all the faithful and 
declare to them that such schools, heing hostile to the Catholic 

Church, CANNOT IN CONSCIENCE BE FREQUENTED." 

X. Does any one say that applied only to schools in 
Europe, where, perhaps, there was some special reason for 
such declaration ? If so, I ask such person to note the 
following fact : On June 30, 1875, there was sent from 
Eome an Instruction to the Bishops of this country con- 
cerning the public schools here, w^hich, after quoting the 
last sentence of the above citation, makes the following 
declaration with regard to it : " These words, inasmuch as 
they are based on the natural and divine law, enunciate a. 
general principle which holds universally and refers to all 
places where this most destructive system has been unfor- 
tunately introduced. It is therefore necessary that the 
illustrious prelates should by all possible means keep the 
flock entrusted to their charge aloof from the corrupting 
influence of the puhlic schools.'' As cited by Dr. Conway, 
Professor of Mental Philos. in Canisius College, Buffalo in 
his " Eights in Education" (Pustet, New York, 1890). 

XI. Does any one say that it cannot be permitted that 
any authority other than The People of the State of Ohio 
shall interfere with the public schools of the state ? No- 
body is trying to interfere with them, so far as any one 
who is free to attend them wishes to do so. Catholics 
simply show that they are not free to attend them, and 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 337 

remind their fellow-citizens tliat it was solemnly agreed 
when the constitution and government of the state of Ohia 
were established that they should not be compelled to do' 
so. All they ask is that their fellow-citizens obey the 
fundamental law established by The People of the State of 
Ohio. Besides, why should non-Catholics complain of the 
attitude of Catholics in this matter ? Catholics pay their 
share towards supporting those schools, and permit their 
non- Catholic fellow-citizens to take all the benefit of them, 
asking no share in them themselves. All they ask is to be 
let alone in the private schools they have established for 
their own use, and which they pay for out of their own 
pockets. They insist that they shall not be persecuted in 
this matter ; that their rights shall not be denied them ; 
that their private schools shall not be interfered with ; that 
the constitution of Ohio guaranteeing conscience rights 
shall be obeyed. 

XII. Bishop Keane, Rector of the Catholic University, 
is most radical in his denunciation of thej>ublic schools. 
In an article in the North American Bevieio, June 1885, 
after showing at length that the tendency of the public 
schools is not only to destroy the faith of Catholic chil- 
dren attending them, but to destroy all faith even in 
Christianity among even non-Catholics who come under 
their influence, he says : " This is our reason for saying we 
cannot in conscience send our children to the public schools.'^ 
(Italics mine.) 

He is so opposed to state interference in schools that 
he will not even accept the denominational system of 
England or Canada. He will have nothing to do with 
the state in the matter of education. After saying that 
though some bishops may be willing to accept ^he denomi- 
national system, he adds these words : "But thore are 
some, and the present writer is among them, who, seeing 
that government aid is apt to lead to government interfer- 
ence and dictation, would rather continue forever to bear 
the unfairness and hardships of the present system than 



338 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

to purchase state aid at the cost of any danger to the 
thoroughly Christian character and perfectly reli(;;ious free- 
dom of our schools. 

XIII. The fundamental reason of the decision of the 
Catholic Church in this matter is, that because of the 
nature, end, purpose, and obligations of man, secular 
instruction of children cannot properly be separated from 
religious instruction ; that religious instruction is solely a 
function of the Church, therefore all schools for the edu- 
cation of her children and youth must be under her entire 
direction and control, so far as the instruction therein is 
concerned. 

XIY. But there are others besides the authorities of 
the Catholic Church who say that religious and secular in- 
struction must go together. 

In the annual conferences of leading Protestant denomi- 
nations in this country the same doctrine has been repeat- 
edly declared ; and in the December '91 Forum Frederick 
Harrison of England declares : " If there is one thing on 
which all the great reformers of man's social life have 
insisted more than another, it is the essential unity of edu- 
cation in its moral, mental, and active side, and the hope- 
lessness of trying to build up a truly organic education out 
of many kinds of merely sectional instruction. It is like 
seeking to cure a case of nervous collapse by drugs. 

" All real philosophers tell us that man is a complex, 
. subtle, but single organism, which we can no more take to 
pieces and treat in segments than we can cut up his body. 
If there be such things as morality and religion, and if any 
thing can be said or done by way of inculcating them or 
applying them to life, then education cannot be severed 
from morality and religion, and all real education must be 
inspired by religion as well as moralit}^ Yet here we all 
are vowing that religion shall not meddle with education, 
and that morality belongs to a set of influences quite apart 
from schools and universities. No one will suspect me," he 
adds, " of sighing for the old exclusive religious tests of 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 339 

orthodoxy, or of wishing to see our academies reformed on 
the pattern of a Jesuit college. I am not likely to forget 
that for me and for mine no place would be found in any 
theological seminary. I recognize the necessity therefore, 
as things stand, of eliminating religion from our secular 
education; and as I do not understand what systematic 
morality can mean if it have no religious direction at all, I 
am bound to recognize further that the moral part in our 
current scholastic systems has to be of a very formal, gen- 
eral, and simple kind. But since in a truly normal educa- 
tion religion is the yery essence of noble work, and since 
morality apart from religion is a rattling of dry bones, all 
that we can do in education must be mere provisional 
makeshift." (v. Forum, 1. c.) 

XY. This is an utterance that ought to have some 
weight in the consideration of this conscientious objection 
of Catholics to availing themselves of the present Ohio 
public-school system. Here is a man holding high place 
in England as a social philosopher ; one wiio, as he says in 
the beginning of the article cited, " has had to take part in 
education in one form or other for nearly forty years ;" one 
for whom, as he further confesses, "no place could be 
found in any theological seminary ; " one who is therefore 
outside of all present religious denominations; one who 
would certainly from this latter fact be expected to favor 
the Ohio system of separation of secular from religious in- 
struction, if it were possible in reason for him to do so, 
and yet he most unqualifiedly condemns it. It is true that 
he says, "as things stand," he "recognizes the necessity of 
eliminating religious instruction from our secular instruc- 
tion ;'* but he is not in a state having a conscience clause, 
as in the constitution of Ohio. He is in England, where 
Parliament is omnipotent, where there is no written con- 
stitution like ours, where the Legislature may do what it 
likes, and, whatever it likes becomes at once by that very 
fact legal and constitutional ; yet, in spite of all that, he says 
he is not in favor of letting things stand as they are. He 



340 THE STATE OF OHIO VS. THE REV. PATRICK E. QUIGLEY.- 

says : " There are hours when I feel about education noth- 
ing but this : Wipe it out, and let us begin it all atr^jsh." 

He says : " Education cannot be severed from morality and 
religion," and "morality apart from religion is a rattling of 
dry honeSj'' and " as things stand " all we can do now is 
*' mere provisional makeshift.''' Does not this confirm the 
position taken by the Catholic bishops of the United 
States ? The Catholic people of Ohio take their doctrine 
in the matter of parental obligations as to education of 
children from their bishops, and act upon it as a matter 
of conscience. They feel *and prove by their acts that 
they cannot in conscience send their children to the state 
schools of Ohio as now organized ; and when they find the 
position of their bishops accepted and declared even by 
undenominational social philosophers of the rank of Fred- 
erick Harrison, they are, if need be, further fortified in 
their conviction that they cannot in conscience patronize 
purely secular schools. 

Conscience rights are respected as to Quakers : why 
shall they not also be as to Catholics ? Are the con- 
sciences of Catholics less sacred than the consciences of 
other people ? The state may not enforce Quaker attend- 
ance in the army, though such attendance be of undeni- 
able, immediate, and paramount necessity for the preserva- 
tion of the state, and this because Quakers declare and 
prove that they have conscientious objections to such 
attendance. How then may the state enforce Catholic 
attendance in state schools where equally grave conscien- 
tious objections exist, and the necessity for such attend- 
ance for the preservation of the state is certainly not as 
great as in the case of military attendance, and where it is 
by no means clear that there exists any necessity whatever 
for such school attendance. The constitution is for all — 
all of it, every part of it ; and to deny any part of its guar- 
antees to even a single citizen of the state is revolutionary, 
tyrannical, despotic, and is a definite act in the destruction 
of the government of the state: it is not an act toward 



THE STATE OF OHIO VS. THE EEV. PATRICK F. OUIGLEY. 341 

destruction, nor tending to destruction, but it is destruction 
itself ; and those who perpetrate it have no longer any right 
to continue to govern under the constitution which they 
thus set aside, and for which they substitute only their 
own arbitrary will ; and even armed resistance to such 
encroachment would not be resistance to legitimate govern- 
ment, but a loyal support of it. This declaration in the 
constitution that rights of conscience shall be respected 
is not a " glittering generality." It is one of the solemn 
pledges under which the union of the people of Ohio was 
established, and it must be faithfully kept or that union is 
destroyed. 



343 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIOLEY. 

IV. 

Personal Liberty Eights. 

In my argument (in the Circuit Court, p. 28) I claimed 
that the clause in the constitution of the state of Ohio de* 
daring that the people of Ohio have the right of seeking 
and obtaining their own happiness and safety forbids the 
state of Ohio to assume the roJe of a paternal government, 
and that for the state to take the children from the parents 
and undertake to be itself a father to them, treating them 
as "the children of the state," is to assume paternalism in 
legislation. 

I h^ve no further illustrations or arguments to adduce 
on that point. The clause is plainly there in the constitu- 
tion, and by one of the chief rules of construction the court 
is bound to try to give it the force the framers of the con- 
stitution intended it should have. It is difficult to conceive 
of a case which would more distinctly come within its scope 
and application than the one at bar. It seems to be ex- 
actly the case contemplated by Herbert Spencer when he 
declared, as cited in my second argument, that the state has 
no right to undertake to form or mould the character of its 
future citizens by compulsion, in any particular way, on 
the ground that by doing so it would be providing for their 
greater happiness and safety. This clause of the Ohio 
constitution seems to emphasize that declaration of Herbert 
Spencer by declaring that the people of Ohio shall have 
the right to be free to choose for themselves in what way 
they will provide for their future happiness and safety. 
That clause must have been put in the constitution for 
some puipose, to cover some case that might arise. If this 
be not a case for its application it would be interesting to 
know what kind of a case it is that was intended to be cov- 
ered by that language. 



THE STATE OF OHIO VS. THE KEV. PATRICK F. QUIGLEY. 343 



V. 

Answees to Secular Claims. 

Having thus advanced some of the objections to this 
law, I will now notice some of the arguments urged in sup- 
port of the claim that the state has authority over private, 
parochial, and parental education ; but when I say argu- 
ments I mean arguments in general, for so far the state 
has hardly attempted to argue that point in this case. 

Self-preservation. 

The first general argument is that the state must have 
this right in order to protect its own existence ; that in a 
republic with universal manhood suffrage a universal diffu- 
sion of knowledge up to a certain standard of intellectual 
culture is necessary for the safety of the state, and that 
this can be had only by the state fixing that standard and 
bringing all citizens up to it by general laws compelling the 
universal acquisition of a certain amount of secular knowl- 
edge, obtained in secular schools established by the state. 

I. The first answer to this which suggests itself is, that 
the very fact that a republic exists, established by a free 
and independent people, who never had compulsory educa- 
tion, implies that we may reasonably exjDect a continuance 
of sufiicient general intelligence among them to maintain it 
without compulsory schooling. The thing necessary for 
the maintenance of the republic is not that all its citizens 
have sufficient intelligence to properly discharge their duty 
as citizens, but that the effective majority have such intel- 
ligence, and also morality enough to use that intelligence 
honestly. We are not considering under this proposition 



344 THE STATE OF OHIO VS. THE REV. PATRICK F. QL^IGLEY. 

what would be good, or better, or best, but simpl}^ what is 
absolutely necessary for self-preservation. 

II. In a free republic, with education left perfectly free 
to all, with freedom to parents to give their children such 
education as they please in private schools, yet with all 
possible neglect of parents covered by a system of free 
public schools, offering ample facilities for instruction to 
all children in the state, it is not permissible in reason to 
claim that such a state can be in danger of death for lack 
of elementary secular knowledge among its people. 

Kentucky is often disparagingly referred to in compari- 
son with the New England and Middle States as far behind 
in the matter of public- school education, as having a high 
percentage of its people utterly illiterate, and therefore left 
behind in the race for progress. The public-school states 
claim they stimulate, cultivate, and decorate all latent talent, 
and not only produce statesmen for themselves, but furnish 
them in great numbers to their less cultivated neighbors ; 
but the statistics of the present national Congress show that 
in proportion to population Kentucky has more of her sons 
there as senators and members than any other state in the 
Union. It is remarkable that the statistics are always 
against the claims of these public-school enthusiasts. 

It is not pretended that more than a knowledge of 
reading is necessary for the voter to cast his ballot intel- 
ligently. It is not generally admitted in this country that 
even that amount of knowledge is necessary. There is no 
general agreement that ability to read shall be a qualifica- 
tion for voting ; therefore it is improper for any one to claim 
that a universal knowledge of even the least of the " three 
E's " is necessary for the self-preservation of our state. 
States have been preserved, are being preserved, and as 
long as states last will continue to be preserved without it. 
But it is claimed that it is desirable to have it, and that, 
it would be for the public good to have it; and that brings 
us to the second argument in support of the claim mad© 
he*re by the state. 



THE STATE OF OHIO VS, THE REV. PATRICK F, QUIGLEY. 345 



The Public Good. 

The second claim made by the state is that it would be 
for the public good to have a universal diffusion of a cer- 
tain amount of secular knowledge ; that it is a function of 
tie state to legislate for the general good; therefore it may 
legislate for this good and enforce it by compulsory educa- 
tional laws. 

I. It is by no means certain that a universal possession 
of the amount of secular instruction generally given in pub- 
lic schools would be for the general good. That it would 
be so is a mere 'assumption, by no means proved ; and many 
social philosophers of considerable distinction absolutely 
deny the truth of the proposition. They argue that the 
work of the world is divided into many classes by broad 
and ineffaceable lines of distinction ; that the great bulk of 
that work must be done by manual labor — labor which re- 
quires great physical strength and endurance, and does not 
require any of that intellectual culture acquirable only in 
schools, public or private ; that these manual laborers will 
not do their work better because of a public-school educa- 
tion. On the contrary, that such education has a tendency 
to unfit them for this labor, to make them dissatisfied with 
it, to wish to rise above it and get into more genteel occu- 
pations ; that this fact is admitted by the advocates of com- 
pulsory education, and urged as one of the strongest reasons 
in support of it; that if the laboring classes could be lifted 
above the condition of manual labor^ and their place be 
taken by machinery or some non-human power, it might be 
for their good to try to do so, but as the general good re- 
quires that the great bulk of mankind shall always consist 
of manual laborers, contented with their work, anything 
which makes them discontented with it is not for the gen- 
eral good ; that what they want is not more compulsory 
education, but more pay for their work, a greater share in 
the profits of labor: give them that, and opportunity to 



>^ 



346 THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 

freely acquire secular knowledge, and they will acquire of it 
all that is good, necessary, or useful for themselves or for 
society. Without undertaking to say which of these two con- 
tending schools of social economy, is right, we may certainly 
say that so long as the proposition that a universal diffusion 
of a comparatively high standard of mere intellectual cul- 
ture is necessary for the general good is so seriously ques- 
tioned, that naked proposition without any supporting proof 
cannot be properly advanced as a justification for this law. 

II. The advocates of this law urge that ignorance is the 
parent of crime and secular instruction is the all-efficient 
remedy. Herbert Spencer pointed out long ago the fallacy 
of that claim, showing that the first part of the proposition 
was untrue ; that the great bulk of most serious crime, that 
which worked greatest injury to society, was committed by 
educated persons ; that the second part of the proposition 
was absurd, in claiming that mere knowledge of the alpha- 
bet and its combinations would restrain people from com- 
mitting crime. 

III. "Washington Gladden, in April Century, 1886, 
says : " What education can do to promote morality has 
been more thoroughly done for Massachusetts than for any 
other American state." Nevertheless he says there has 
been " a manifest deterioration of public morals, which has 
kept even pace with this secular tendency in education." 
He says that this public-school system of secular education 
has had its greatest application in Massachusetts during 
the last thirty years, yet during that same time crime has 
increased proportionally instead of having been dimin- 
ished ; that the proportion of prisoners to population in 
Massachusetts was in 1850, 1 to 804, but in 1880, 1 to 487,— 
that is, that instead of crime being diminished in propor- 
tion as education increased, it did not only not diminish at 
all, but actually doubled in proportional amount ; and that 
this was not due to immigration : that, on the contrary, the 
native criminal class increased faster than the foreign, the 
proportion being i» 1850, of natives 1 to every 2667 native 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 34:7 

citizens, and in 1880, 1 to every 615 native citizens, or four 
times as many native criminals proportionally under secu- 
lar instruction in Massachusetts as there were before its 
general introduction (pp. 938, 939). 

lY. Mr. Spalding, Secretary Massachusetts Board of 
Prisons, in the January Forum, 1892, in an article entitled 
" Has crime increased in Massachusetts? " has given what 
may be cited as an answer to my suggestion ; but his answer 
confirms all that my suggestion claims. He distinguishes 
between crime and vice, — classing as crime violent assaults 
against the person or property of others, like homicide, bur- 
glary, larceny, etc. ; classing as vice, adultery, night-walking, 
roistering, drunkenness, disorder, vagrancy, and the like. 
He claims to have explored the whole field of statistics. 
He admits (p. 662) that in the last ten years crime has in- 
creased in Massachusetts four times as fast as the popula- 
tion, but claims that it has been mainly of offences other than 
those against person and property, or constituting what he 
calls vice as distinguished from violent crime ; but on p. 665 
he admits that he regards these offences whiclrhe classes as 
vice as being " in some of their aspects even more serious 
than offences against person and property." Naturally so, 
for a general prevalence of adultery and night-walking is 
more menacing to the life of the state than an occasional 
homicide or burglary. The latter in its relation to society 
may be likened to an accident to the person not endanger- 
ing life, the other to a constitutional corruption of the sys- 
tem almost incurable. Mr. Spalding's plea for society in 
Massachusetts is summed up in the words : " We have more 
than held our own, as a state, in the struggle against crime, 
though we have failed to keep doivn the vices'' (p. 664:), and " We 
have kept down the figures which represent everything except 
vice." (Italics mine). Does not this confess plainly enough 
that the public-school system as now managed in Massa- 
chusetts is powerless against vice ? And why ? Because 
it does not attempt to teach morality. The natural conse- 
quence has followed in Massachusetts so plainl}^, that no 



348 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

one may deny it. And yet the educational enthusiasts 
have the hardihood to still claim that such a system is 
for the good of the state ! When will they learn that the 
condition of the state depends on the condition of the 
families in it, and that moral soundness in the family can 
be secured only through education directed bj parental 
authority enlightened and guided by religious influence ? 
Separation of secular instruction from religious influence is 
but a very recent modern experiment The experiment has 
failed in Massachusetts. Instead of strengthening the state 
there, it is corrupting it at a rate that, if not stopped, will 
soon bring its complete destruction ; and yet we are asked 
to believe that the very thing which is destroying the state 
of Massachusetts is absolutely necessary to preserve the 
life of the state of Ohio ! No wonder the cry is heard 
throughout the land that we must have morality taught 
in the public schools. To get that we must first have pub- 
lic schools in which religion may be taught ; for, as Fred- 
erick Harrison says (1. c.) : *' Morality apart from religion 
is a rattling of dry bones." 

y. Germany is the great field of compulsory secular in- 
truction in Europe, and has been for the last thirty years ; 
therefore, if compulsory schooling diminishes crime, we 
will find that the percentage of crime does not increase there 
as fast as the percentage of population. In Prussia the 
increase of population from 1871 to 1878 was 44 per cent, 
but of crime 100 per cent ; in Saxony, with an increase of 
population 7.4 per cent, there was of murders an incr'ease 
of 85 per cent, of offences against morality 181 per cent, 
of personal outrages 200 per cent, — and so on all through 
Germany ; so that Yon Puttkamer, Prussian Minister of 
Public Instruction, frightened at these figures, declared 
(1879) : " I am convinced that on the day on which we cease 
to make the saving teachings of the gospel the basis of edu- 
cation the fall of our national civilized life will be inevi- 
table." (As cited by Dr. Conway, " Eights and Duties in 
Education," p. 24, Pustet, N. Y, i890). 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 349 

When a social pliilosoplier in England declares in 1850 
that the proposition that secular instruction is a pana- 
cea for crime is unsound, untrue, and absurd, and the 
census returns for the great state of Massachusetts thirty 
years later accord so wonderfully with his declaration, 
how can we tolerate the assertion, still so boldly made, that 
such instruction is necessary for the general good ? 

YI. Bluntschli is considered one of the greatest secular 
philosophers in Europe, as one of the highest authorities 
on International Law and Social Economy. Treating of 
compulsory education, he says : " In Germany and Switz- 
erland, where the greatest educational efforts have been 
made, we have run the risk, by the vain accumulation of the 
subject-matter taught in our schools, of educating a youthful 
generation which will only with repugnance and with a kind 
of indescribable shame take to the ordinary work of trades- 
men or factory laborers, and who prefer the poor and often 
miserable occupation of the scribe to commoner but much 
nobler labor. There was a time when there was reason to 
complain of too little education, but now, in most^countries, 
we have fallen into the other extreme of too much : instead 
of giving our youth the simple and healthy educational 
food of common men, we are feeding them on the scraps of 
luxurious dishes, which will surely make them dyspeptic." 
" Lehre vom Modernen Staat, vol. i. p. 463." 

YII. Ahrens, a Protestant German writer, condemns 
state schools on the secular system, holding it accountable 
for the prevalence of infidelity, materialism, and immorality 
in Germany. He says : " Governments are chiefly to blame 
for the aberrations produced by the present system of 
education, and for all the consequences thence ensuing." 
"Naturrecht, vol. i. p. vii." 

YIII. Dr. Cauer, a Protestant German specialist on 
education, sounds a note of warning. He says that state 
education is leading to " Chinaism." "The idea," he 
says, " that the state can by positive interference promote 
the efficiency of .an intellectual power such as education, 



350 THE STATE OF OHIO VS. THE REV. PATRICK F, QUIGLEY. 

.... is the root of all evil. This idea must be removed. 
Decentralization of education must be our first and our last 
demand." Cauer, " Staat und Erziehung," 1890, pp. 69 sq. 

IX. The law in question here begins by actually op- 
pressj^ng, and tends to entirely suppress, private schools, 
on the plea that to do so will be for the general good. Iq 
Germany, where that theory has been fully tested, the au- 
thorities on education say that it is the very opposite 
policy which is required for the public good. Which shall 
we do in this country? Blindly follow condemned theories, 
or wisely profit by the sad experience of others ? 

X. The advocates of this law say it is necessary for the 
public good, because it is the only way to secure uniform- 
ity in education ; but Frederick Harrison says, December 
Forum, '91 : " A uniform system of education is a form of 
madness akin to a project for making men of one size or one 
weight ;" and that " It is to be hoped that the New World 
may be spared some of the evils which so fatally trammel 
education in the Old World." (1. c.) (Italics mine.) 

XI. It is said that this court will not undertake to 
decree whether certain legislation is or is not for the gen- 
eral good ; that that is a question which must be left to the 
wisdom, judgment, and prudence of the Legislature. 

I distinguish. Where no natural right is invaded by the 
legislation proposed, granted. 

But this court will not sanction an abridgment of the 
people's natural rights on the mere plea that such abridg- 
ment will be for the public good. The justification must 
go farther than that. It must be that such legislation is 
indispensably necessary for the public good ; that the 
peace and well-being of society would be endangered and 
imperilled if such legislation were not protected and en- 
forced, and the justness of that plea must be unmistakably 
evident. 

No one may reasonably claim that the existence and 
maintenance of the private schools of Ohio endang'^r the 
existence of the state ; therefore there is no justification of 



THE STATE OF OHIO VS. THE REY. PATRICK ¥. QUIGLET. 351 

this law, which asserts the right to destroy them, and 
which contains provisions the enforcement of which consti- 
tutes a beginning of the process of destruction. If there 
was no question of natural rights involved, then we might 
trust to the discretion of the Legislature ; but the court can- 
not permit natural rights to be disregarded on the mere 
claim that to do so will be for the general good. The first 
duty of the state is to protect natural rights. That accom- 
plished, the state may try to do something for the general 
good, but only in the way of supplementing the action of 
individuals ; but even then it must be only a good which is 
common to all, and which private effort is unable to attain. 
We have the evidence of other countries where general 
compulsory school attendance has long been tried, to the 
effect that it is not for the general good. I will undertake 
to show later the difference between compulsory attend- 
ance and compulsory education, and how the former must 
be rejected while the latter may be enforced, but in a man- 
ner and to an extent very different from that contemplated 
by this law. 



352 THE STATE OF OHIO VS, THE KEY. PATRICK F. QUIGLEY. 



VI. 

Authorities. 

It is customary in presenting a case before this court to 
cite the precedents of like or similar cases where the same 
question* has been considered and passed upon by othor 
similar courts. I am unable to do that here, because this 
is the first case on the subject. This is the first time, so far 
as I can learn, that the question has been raised in any of 
our courts as to whether one of our American States has the 
right to enact and enforce a general compulsory education 
l;,w. There have been cases where some of the practical 
details of such laws have been called in question, notably 
one where sections similar to those in this law authoriz- 
ing the sentencing of minors to practical imprisonment in 
reformatories without trial by jury have been held uncon- 
stitutional, and those cases will be brought to the notice of 
the court by one of my colleagues ; but as for American or 
English cases directly on the main question here, there are 
none. This matter of compulsion in education has been so 
foreign to all English and American ideas of personal lib- 
erty, that it is only in these late days of all sorts of fanatical 
experiment that the advocates of state control in everything 
affecting the public welfare have ventured to offer even 
parental control of children as a sacrifice to their great idol, 
the state. Therefore, in seeking to establish the proposi- 
tion that as between parents and the state in the matter of 
the care of children, the right of the parent is prior in time 
and superior in law, I have to begin by proving that the 
natural law is of paramount authority in the state of Ohio, 
that it is the foundation on which the constitution of the 
state is based. 

In my first argument in this case, the one in the Court 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 353 

of Common Pleas, before his lioiior Judge Pugsley, I un- 
dertook to set forth the origin, nature, extent, and force of 
the natural law. For this purpose I cited there the Holy 
Bible, verses 14 and 15, chapter ii., St. Paul to the Romans ; 
the Patristic authorities St. Augustine, Origen, Tertullian, 
8t. Ambrose, St. Jerome, St. Basil, St. Chrysostom, St. 
Theodoret, and St. Prosper, with the particular references ; 
also, Clement of Alexandria, Gregory Nazianzen, and Greg- 
ory Nyssenus, passim; the classical authorities, Cicero, 
Socrates, Plato, Aristotle, Sophocles, Seneca, Epictetus, 
and Demosthenes, with the particular references ; of me- 
dieval, Thomas Aquinas, Dominicus Soto, Molina, Lugo, 
Lessius ; of modern, Dmowski, Solimani, Tolomis, Libera- 
tore, Tongiorgi, Coruoldi, Balmes, Donoso-Cortes, De 
Lehen, De Margerie, Onclaire, At, Yallet, Ch. Perin, 
Moulart, Chesnel, Laforet, Keller, Von Weddingen, Bur- 
quard, Kleutgen, passim ; Hooker, Muller, Sedgwick, Forti, 
Taparelli, and Leo XIII., with the references. 

II. To show that this natural law was adopted in the 
state of Ohio, as its fundamental law anterior and superior 
to its local state constitution, I cited the Declaration of 
Independence, the Constitution of the United States, the 
Ordinance of 1787 for the North West Territory, the Ohio 
constitution of 1801, and the Ohio constitution of 1851, 
with references and comments ; and for construction. Pot- 
ter's Dwarris, and Lieber, with the references. 

III. That under this natural law, thus adopted in the 
constitution of the state of Ohio, the parent had a natural 
and exclusive right to control the education of his child, I 
cited Taparelli and Leo XIIL, with references and com- 
ments. 

lY. In my second argument in the case, that in the 
Circuit Court, before Judges Scribner, Haines, and Bent- 
ley, I addressed myself more particularly to the task of 
showing how it was that a state had any rights at all in 
such matters — how far it might not go in these things, and 
that the law in this case passed the limit, citing there a list 



354 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

of authorities so lengtliy that I will not repeat it here, but 
beg to refer to pp. 34, 35, 36, 37, and 38 of the pamphlet 
report of that argument, where the list will be found in full. 

V. In the present argument I have so far confined 
myself to simply recapitulating my former arguments, and 
adding such further illustrations and authorities as I have 
been able to bring forward. On this argument I have 
already cited several authorities not before mentioned in 
this case, and have quite a number more to cite. 

YI. So far in this case there has been scarcely any at- 
tempt made to controvert the propositions and authorities 
I have submitted on this fundamental proposition, that this 
law is in violation of natural rights, and therefore void. The 
only attempt made in the court of first instance, the Court 
of Common Pleas, was by the court itself, in the opinion 
read by his honor Judge Pugsley, in which he declared 
that this law did not abridge the rights of parents nor 
interfere wdth the control or management of private schools. 
"Whether or not his honor was correct in that opinion is 
one of the subjects now here for review. 

In the Circuit Court the judges declined to enter into a 
discussion of the question of the constitutionality of the 
law, ruling in its favor pro forma in order that the final 
decision might be had here with as little delay as possible. 
But on the hearing in the Circuit Court counsel for the state 
did make, as against my position, some citations which they 
claimed were authorities from what they were pleased to 
term " my own camp," and which they confidently asserted 
were opposed to my claims. 

Peofessoe Bouquillon's Pamphlet. 

The chief of these authorities is the brochure of Pro- 
fessor Bouquillon of the Catholic University at Washington, 
entitled " Education. To whom does it belong ?" (Murphy 
Co., Baltimore, 1891.) The pamphlet in question had not 
been published at that time but the views it contains had 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 355 

been promulgated by the Professor from his chair and the 
substance of them stated in newspaper communications, 
and in that way he was cited as an authority against my 
position. The Professor has long enjoyed a European 
reputation as a distinguished writer on the subject of 
Moral Theology. When the Catholic University was 
started some two years ago he was brought over to fill 
that chair here. In the preface to the brochure in question 
he informs us that his ecclesiastical superiors " deemed that 
a clear exposition of the principles underlying the school 
question would be both useful and opportune at this hour, 
when the practical difficulties in which it is involved have 
become national concerns, were it only to show that in the 
matter of education, as in all other social concerns, the true 
doctrine of the church is opposed neither to liberty well 
understood, nor to the just prerogatives of the state." He 
also informs us that this pamphlet was written at the re- 
quest of those ecclesiastical superiors. 

When so important a body as the ecclesiastical superiors 
of so important a person ask him to express the true doc- 
trine of the church on so important a matter, the^^ext 
important thing for us to know is whether they examined 
and approved of his work. The Professor omits. to tell us 
anything about that. This suggests the inference that 
either those superiors did not see this work before publica- 
tion, or, after seeing it, did not feel like committing them- 
selves to SiHj expression with regard to it, but left it to find 
whatever place its own merits or demerits would secure for 
it. This is unfortunate for us poor laymen, so anxious to 
know what is the true doctrine of the church on this sub- 
ject. It forces us either to wait for some authoritative 
judgment of the pamphlet, or to examine it ourselves and 
determine as well as we can whether or not it does teach 
the true doctrine of the Catholic Church on this point. 
In this case we cannot wait for such judgment, but must 
either accept the pamphlet as it is, or examine it. This 
court might be willing to take the judgment of those 



356 THE STATE OF OHIO VS. THE EEY. PATRICK F. QUIGLEY. 

" ecclesiastical superiors " on such a question, but of course 
no one will expect it to take the simple declarations of a 
mere professor in so grave a matter, even though he be so 
recently arrived from EurojDe, and even though he fill so 
prominent a chair in the very young, but we trust flourish- 
ing, University at Washington. 

We must therefore do what it seems the *' ecclesiastical 
superiors " have invited us to do, namely, to examine this 
work for ourselves and form our own opinion with regard 
to it. 



Prof. B.'s Definitions and Explanations. 

To properly understand the full meaning of a formal 
utterance we must understand the object for which it was 
made. That object is formally declared in the j)amphletto 
have been for the purpose of showing that the church does 
not den}^ the just prerogatives of the state in the matter of 
education. That is an admission at once that the state has 
just prerogatives in that matter. Then the real object of 
the pamphlet is to show what those prerogatives are. The 
professor undertakes to show that they are as f ollow^s : That 
the state has the right to educate, to control education, and 
to compel education. The pamphlet becomes thus a plea 
for the right of the state to enact and enforce compulsory 
education laws, and it is cited here for that purpose. I 
congratulate counsel for the state on the accession to their 
ranks of an advocate of such distinction, and I expect that 
in consequence of that we will now, at last, hear in this case 
some formal reasons for the existence of this law. 

To sustain this law the Professor undertakes to prove 
a number of propositions: 

I. As the state school is the proposed receptacle of the 
children who are not given the required minimum of in- 
struction in homes or private schools, the Professor very 
logically begins by undertaking to prove, first, that the state 
has a right to establish and maintain such a school, and to 



THE STATE OF OHIO VS. THE KEY. PATRICK E. QUIGLEY. 357 

undertake by its own agents the business of imparting the 
required minimum of instruction therein, or as he puts it, 
that the state has the right through its own officers to 
educate or teach; for he uses the two words interchangeably, 
meaning by t^iem in this connection, as he explains, merely 
the communication of human knowledge to children and 
youth, expressly declaring that the state has no right to 
teach religion nor anything else, except the facts of rational 
science and the fundamental principles of the natural law. 
(Pp. 8, 11, 15.) 

II. That in addition to the right of engaging in the bus- 
iness of teaching on its own account in its own schools, it 
has the right to control all secular instruction in all other 
schools (p. 23, line 10), whereby it may inspect all private 
schools, and if it finds the children are not receiving there 
the minimum of instruction required by the state, may take 
these children from such private schools and force them to 
attend the state school (p. 26). This second right he calls 
** authority over education." He says on p. 21 that these 
two rights must not be confounded with each other ; that 
they are entirely separate and distinct rights ; that theTight 
to exercise " authority over education" is not the right to 
teach, but is simply " the right of watching over, controlling, 
and directing education" (p. 21), while the right to teach 
means the right of " establishing schools, appointing 
teachers, and prescribing methods of tencliiug" (p. 11). The 
parent, he says in illustration. Las the li^ht to teach his own 
children, but has no right to control the education of other 
children. But in addition to the right to teach his own 
children himself, he has also the right to control their edu- 
cation by ordering them to be taught by others, and to be 
taught such branches of learning as he may choose (p. 22). 
That in like manner the right of the state to control teaching 
is distinct from its right to teach. A person to whom the 
state gives a certificate of fitness to teach human knowledge 
acquires thereby a civil right to teach, but not a right to 
control education. I note the Professor's command that 



358 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

these two rights must not be confounded with each other, 
and I will do what I can to see that the command be not 
transgressed, promising him that even should he himself 
forget, and at any time attempt to confound them, I will 
remind him of it. 

The Professor's Propositions. 

The Professor then undertakes to prove these two 
propositions : 

" I. The state has the right to teach human knowledge" 
(p. 12). 

'* II. The state has the right to control the teaching of 
human knowledge in all schools" (p. 23, line 10). 

He has other propositions, but for the present we will 
consider these. 

He informs us that we must understand that when he 
speaks of the rights of the state he means only the " right 
of the state considered in itself^'' — whereby, I take it, he 
means such rights as the state has merely because it is a 
state, not as augmented by any concessions from the 
church, nor as diminished by any constitutional or other 
compact with the people (p. 12). 

He informs us that the propositions he puts forth are 
the true doctrine of the Catholic Church on the subject; 
therefore what he has to do is to show that the accepted 
authorities of the Catholic Church declare that these prop- 
ositions are held and taught by the Catholic Church. 
That is the declared object of the pamphlet, — to show peo- 
ple in this country what is the true doctrine of the Church 
on the schoo^ question (p. 3). 

Prof. B.'s First Proposition. 

And now for the Professor's first proposition, — that the 
state has the right to educate, or, as he later and more 
carefully puts it, that the state has the right to teach 
human knowledge. 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 359 

He asserts that by this he does not mean " a vague and 
general right, but a special and proper right" (p. 11); that 
this right "is included in that general authority with which 
the state is invested for promoting the common good " (p. 
23) ; wherefore he claims that the right of the state to teach 
children and youth is just as much one of the secondary 
functions of the state as *' the laying out and repairing of 
roads, the foundation of hospitals, and the like" (p. 18), and 
that this is the true doctrine of the Catholic Church. 

In proceeding to the proof of his proposition, the 
Professor begins with this surprising declaration : " We 
will produce facts and documents to show that all Chris- 
tian nations have always held this opinion." Why does he 
say that? We have nothing to do here, just now, with 
what opinions Christian nations may have held. What he 
undertook to prove was that this is a doctrine taught by the 
Catholic Church! 



Prof. Bouquillon's Facts. 

The Professor gives us his first fact. He goes a long 
way for it — back to the days of Charlemagne ! It ought to 
be a good one and very pertinent, for that was a time when 
the state was so generally considered only in itself , and not 
as hampered with any union with the church ! The Pro- 
fessor is so proud of his Charlemagnic fact that he puts 
it apostrophically thus: "How astonished Charlemagne 
would have been had he been told that he had no right 
to found schools !" I suppose courtesy requires that I 
should reply in an equally exalted strain : " How aston- 
ished Charlemagne would have been had he been asked, 
*Do you do this "in harmonious combination with the 
Church," or to assert an independent right in the state, 
considered in itself .^ ' " 

Prof. B.'s second "fact" is that certain Catholic bishops 
in Charlemagne's time, assembled in council at Toul, ex- 



360 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

liorted princes, as well as ordinaries of dioceses^ to appoint 
everywhere teachers of divine and human learning (p. 13). 

An " ordinary " of a diocese is but another word for 
*' bishop" of a diocese. This was in the time of Charle- 
magne, in a Catholic state, ruled in civil matters by Catho- 
lic princes, when education was conducted entirely by 
the church. And yet Prof. B. cites the fact that such 
admonition by a Catholic episcopal council to Catholic 
princes, to join with Catholic bishops in providing Catholic 
schools with Catholic teachers of- Catholic theology as 
well as human learning, in a place where there was close 
union of church and state, is an instance of an admission 
that the state, of itself, has a right to educate ! 

The Professor has cited us to history. Who were those 
" princes " exhorted by the Council of Toul to encourage 
education? Were they secular rulers of secular states 
jealously fighting for the rights of the state against the 
claims of the church, so that an appeal to them by the 
council to act in education was a recognition of the inde- 
pendent right of the state to educate ? Scarcely. Most of 
those princes were Catholic priests, with more or less of 
jurisdictional dignity added. Has the Professor never 
heard of the prince-bishops of the middle ages ? Does he 
not know that " the state" as w^e now have it here, and to 
which it is sought to make his pamphlet apply, did not ex- 
ist in the time of Charlemagne ? And yet he has the nerve 
to cite the declarations concerning those priest-prince- 
bishops as recognizing that the state has of itself the right 
to educate ! 

The Professor, as will be seen later, attaches great 
importance to the language of a "conclusion." Why did 
he not give us the conclusion to this " exhortation" of the 
bishops of Toul ? They said, in conclusion, that they 
wished this action taken in order " that* the fruit of both 
divine and human learning may be augmented in the 
Church of God" {^^ut utriusque ervditionis divince videlicet et 
humance in ecclesia Dei fructus valeat accrescere''). 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY, 361 

That does not sound much like recognizing a right in 
the state to establish godless schools ! 

The third "fact" produced by the Professor is as fol- 
lows: "It stands recorded, that previous to the year 1400 
there had been founded -hj the civil authority alone not 
less than four universities in Italy," and " not less than five 
in Spain" (p. 13). 

I suppose it will be admitted that "previous to the year 
1400" church and state were united in Italy and Spain; 
therefore these universities were not established by the 
state, but by church and state. And even if a state in 
Italj^ or Spain, " previous to the year 1400," did found a 
university, a place for giving the last technical knowledge 
of the arts and sciences, is that any argument to show that 
it was admitted there and then that the state had the right 
to control the primary education of children and youth ? 
The Professor claims to know precisely how no fewer than 
nine universities were founded in Italy and Spain "pre- 
vious to the year 1400," yet English scholars cannot agree 
to-day as to how one of their own universities was founded. 
What does the Professor mean by the " founding " of a 
university ? When he speaks of a state in Italy or Spain 
" founding " a university " previous to the year 1400," he 
cannot mean anything more than this, that such state, 
being only' the secular arm of the union of church and 
state, furnished the money for the site and the building, 
and possibly gave some aid to the clerical body of teachers 
who had charge of the business of " imparting education" 
therein. Does the Professor claim that, even granting 
that the states in question did really " found " the universi- 
ties described, they had therefore the right to control the 
instruction therein ? He says : " Similar instances are not 
wanting in more modern times." Yes, I can cite him one 
that is quite modern. The university in which the Pro- 
fessor himself now holds a chair was " founded " by Miss 
Mary Gwendoline Caldwell, a young lady from Kentucky. 
Does the Professor hold that she has therefore the right t« 



362 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

control the teaching that is given there ? If she has, her 
responsibility is greater than she bargained for. The Pro- 
fessor's third "fact" has nothing to do with proving his 
proposition. The Professor himself seems to feel that 
he has had enough of that kind of irrelevant facts, for he 
suddenly says, " But v^^e desire to call attention to another 
order of facts" (p. 13). 

Now he will certainly give us something that has some 
relation to the subject. The first " fact " of the new order 
cited for us is as follows : 

" In the seventeenth century there were in the archdio- 
cese of Spalatro free schools and communal, or as we 
should say, district schools. In these latter instruction 
was given by salaried teachers, cleric or lay. _ The bishop 
made no objection as to the legitimacy of tliese schools, 
but he desired to know from the Congregation of the 
Council if he could force the teachers of such schools to 
instruct the children and ruder pupils (pueros fudesque 
scholares) in the catechism. The Congregation, in its an- 
swer, Aug. 17, 1688, does not protest against this system of 
schools, but declares that the bishop should exhort the 
masters to teach religion, and even that he may compel 
them to do it." The Professor takes the pains to inform 
us in a learned foot-note that "this answer is to be found in 
Giraldi, in Bened. XIY., Inst, ix., as stated by Cavagnis, op. 
cit., n. 27." 

He might have spared himself that trouble. I have no 
disposition to contest this answer. It makes entirely for 
my contention, and not at all for the Professor's proposi- 
tion. He is giving us this " fact " number one of the new 
order to prove that it is the doctrine of the Catholic 
Church that the state has the right to educate, and yet the 
whole citation shows that it was understood that it was the 
church, and not the state, that had the right to prescribe 
the teaching ; that the bishop might compel the teachers 
to teach the catechism in the schools. 

The Professor states that the Eoman Council in its an- 
swer "does not protest against this system of schools;" 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLET. 363 

but the answer shows that if the Council did not protest 
against the system it was because it was recognized there 
that it was the church and not the state whjch had the 
right to teach, because the church ordered the " pro- 
gramme of study" to be changed ; and this is one of the 
tests the Professor himself gives to ascertain who it is has 
the right to teach (pp. 11 and 12). He says the church did 
not protest against that system. Why should it protest ? 
The church will not protest to-day against a system of 
schools whereby the state will furnish the money and let 
the church prescribe the teaching. How does this first 
" fact " of the new order help the Professor in sustaining 
his proposition that "the state has a right to educate." It 
really tends to refute that proposition, and to substitute for 
it the following : " The state has the right to furnish the 
means of education, but the education itself must be pre- 
scribed by the church." So much for the first " fact " of 
the new order. Now let us go to the second. 

The Professor's second "fact" of the new order is 
stated by him on page 14, in the following words : " In our 
own century, Leo XII., by the Bull " Quoad Divina SupU 
entia,'' Aug. 29, 1824, reorganized the public education 
of the Pontifical States. Now, the dispositions and the 
authentic interpretations of that Bull suppose that the 
state has the right to educate." How so? This statement 
is that the " Pope,'' by a " Bull,'' reorganized the public 
education of Ms own Pontifical States. This was done in a 
place where there was not only a union of church and 
state, but, — the only place in the world where what follows 
could be true, — where the authority of the church was all 
centred in one person and the authority of the state all cen- 
tred in one person, and both of these authorities all centred 
in one and the same person, — a place where the ruler was 
both Pope and state, and might have acted either as Pope 
or as state ; and yet he did not do this act as state, but, as 
the Professor himself tells us, did it as Pope, by a " Bull." 
Ajid yet Jiis very act is cited by the Professor to show that 



364 THE STATE OF OHIO VS. THE EEV. PATEICK F. QUIGLEY. 

thereby the Pope recognized that the state had the right to 
educate ! That is the second " fact " of the new order. 
Now for th^ third. 

The Professor states his third " fact " of the new order 
as follows : " Finally, we have yet to learn that any Pope 
has ever declared that the state went beyond its right in 
founding schools, provided the instruction he organized in the 
spirit of Christianity.'' The italics are the Professor's own. 

It would seem that the Professor is afraid of his own 
proposition. He now, in effect, changes it again, so that it 
now reads : " The right of the state to educate is this : it 
may found schools, provided the instruction be organized in 
the spirit of Christianity, and that the congregation of the 
council at Rome may compel the teaching in those schools 
of a Catholic catechism, which will define what the spirit 
of Christianity is as understood by the Catholic Church." 
Am I to understand that the counsel for the state here ac- 
cepts that proposition ? It comes from the authority they 
have cited. 

Professor Bouquillon's Authorities. 

When the, Professor comes to the question of authori- 
ties in support of iiis proposition he names six well-known 
Catholic writers, and says these are the ones from whom he 
quotes with preference. He mentions them in the follow- 
ing order: Taparelli, Zigliara, Costa-Rosetti, Hammerstein, 
Sauve, and Cavagnis ; but in this connection he does not cite 
from Taparelli or Cavagnis. He begins with Cardinal Zig- 
liara, the learned Dominican, so distinguished in philoso- 
phy. And what does he give us from ^Zigliara to prove 
that the state has the wMe to teach human knowledge ? 
Simply this : " Cardinal Zigliara affirms that nobody denies 
to the state the right to provide the best means for the intel- 
lectual and moral education of its subjects" (Phil. Mor., vol. 
iii. pars ii. lib. ii. c. 1, a. 5, n. 7). The right of the state to 
provide means for intellectual and moral education, means 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 365 

that the state has the right to give intellectual education, 
but that only! Will the Professor not admit that if it 
means one it must mean hoth ? But he has said that the state 
cannot teach religion, therefore cannot teach morality ; 
therefore this declaration cannot mean both : but it must 
mean both or neither ; therefore it does not mean to teach 
human knowledge. It means only what it says — that the 
state may provide means, which is quite a different thing 
from using the means so provided. Zigliara's phrase is : 
" procurandi media aptiora ad educationem." Besides, the 
Professor is careless again — this time in his translation of 
Zigliara. The Cardinal did not say " the best means," but 
"the most suitable means." 

But it ought to be noted that Zigliara, in the sentence 
immediately preceding the one from which the Professor 
cites, expressly denies the right of the state to teach, de- 
claring that to claim such a right for the state " is political 
rationalism." But of course the Professor did not see 
that ! Let us spare his blushes and proceed. 

The next is as follows : " Father Costa-Eosetti, a Jesuit, 
lays down the thesis that the state has the right to found 
^nd direct schools." A little while ago the Professor^w^,s- 
careless : here he is forgetful. He told us in the beginning 
that we must not confound the right of directing education 
with the right to teach. The Professor takes care to in- 
form us that this authority comes from a Jesuit ! Well, 
there is one good thing about the Jesuits, anyhow, — they 
are not as careless as some people when writing about " the 
true doctrine of the church." If we examine Kosetti a 
little we will probably find something warning the reader 
against misapprehension. Ah yes! Here it is : "No suf- 
ficient title can be found to establish th£ right of the state to 
educate children merely because they are citizens, or to have 
them instructed in public schools in order to make them 
good citizens." (Costa-Eosetti, 744 sq.) 

And yet the Professor calmly puts Eosetti*s name down 
as sustaining the proposition that the state has a special 



366 THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 

and proper right to educate as one of tlie general functions 
of the civil power. And the Professor calls this " apodic- 
tical" reasoning ! Some people have another name for it. 

But why does Eosetti qualify his language as above ? 
Why did he not stop short with the proposition that the 
state has no right to educate ? Because, being a Jesuit, and 
dealing with church doctrine, he wanted to be exact. He 
knew that there are schools in which the state may teach — 
naval, military, etc., and that there are cases where the state 
may take upon itself the care of the education of children, 
viz., when they are utterly neglected or abandoned; there- 
fore he stated above just enough to condemn the Professor's 
error. 

The Professor next tells us that " de Hammerstein does 
Dot hesitate to assert that public schools may be established 
hj civil authority" (pamphlet, p. 14). The Professor tells 
us that this is "another Jesuit." Yes. And before he is 
through with him he will learn that he had better be a little 
more careful how he touches Jesuit authors on this question. 
Von Hammerstein is a convert to " the true doctrine." He 
used to be a secularist. Scion of a noble German family 
which has contributed many distinguished men to the state^ 
in his youth he took his lessons in philosophy and jurispru- 
dence from the lips of men like Haller, Ahrens, and Blunt- 
schli ; but for the last twenty years he has been a Catholic, 
devoting special attention to the subject of education. I 
think the Professor ought to have known, or at least sur- 
mised, that when Von Hammerstein made the admission 
cited, he was not, like the Professor, considering what the 
state might do as a state considered in itself, but what might 
be done by the German state in the present day, considered 
not in itself, but as separated from the true church, -and 
also from the true faith, with an immense population ac- 
knowledging no religion, yet in need of schools. But does 
he go with the Professor in acknowledging that the state 
iias the right to educate ? We shall see. 

Father Holaind, Professor of Natural Law in the 



THE STATE 0¥ OHIO VS. THE EEV. PATRICK F. QUIGLEY. 367 

Georgetown University, an institution not in the second 
year but in the second century of its existence, in his 
brochure "The Parent First" (Benziger Bros., N. Y. 1891), 
gives some citations from Von Hammerstein, from which I 
take a few expressions as follows : *' The relations that sub- 
sist between parents and children are under ecclesiastical 
rather than state jurisdiction, . . . The parents have the 
obligation of education, and all the rights of education, be- 
fore the church or the state. The j^arents, therefore, have the 
right of excluding the interference of all others who might wish 
to educate their children. ... In our times the state is that 
agency which attempts to interfere in the education of the 
children by controlling the schools. After a long review o! 
the attempts, the reasons, the objections, etc., he says ; 
"Those repeated and strange attempts to prove that the 
state owns jointly with the parents, or even above the par- 
ents, the right to educate, and to compel the attendance of 
children, show clearly that the right cannot be made good, and 
therefore has no existence.'' (Italics mine.) Now if the Pro- 
fessor really thinks these "Jesuit" authors are with him in 
declaring that the state has the right to educate, he has our 
sympathy. 

The Professor has evidently had enough of GermanT 
Jesuits, for he hies himself now to la belle France, and brings 
upon the scene an aged prelate, whom he causes to make 
for us the following feeble declaration : " To Mgr. Sauve 
the opinion denying the right of the state to educate""3Coes^ 
not seem probable." Mild and gentle ! We feel regret 
that the aged prelate should have been disturbed for so 
little, and grateful that the Professor at once lowers the cur- 
tain and retires the Monsignor from view. But stop ! We 
have always found something behind all these citations; 
suppose we invite the Monsignor himself to come forward 
and express his opinions on these subjects. 

The Monsignor reappears, introduced this time by the 
Civiltd Cattolica of Jan. 2, 1892, and through one of its 
contributors begins with the remark that Professor Bou- 



368 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

quillon's reference to p. 306 is evidently a typographical 
error ; that he did not say anything about this matter there, 
though he did at p. 300, but as to that he is " incorrectly 
reported" by the Professor; that at p. 300 he put the 
question : " Has the state the right to make it obligatory 
on all its subjects to take a certain dose of elementary in- 
struction ?" ; that his answer was, not that he did not dare 
refuse such a right to the state, as reported by the Professor 
on p. 27 of his pamphlet, but that as to that question he 
" did not wish to pronounce absolutely." This is a little 
different from the way the Professor reported it ! 

The Monsignor has however something more to say 
on the subject of the right of the state in education, this 
time presented by Dr. Conway, of Canisius, in his brochure : 
''The State Last," Pustet, N. Y., 1892, through whom the 
Monsignor makes several declarations. 

He begins calmly : "The church has the right to estab- 
lish universities, colleges, schools of every kind, in which 
she may teach, by professors sufficiently capable, not only 
the sacred but also the profane sciences'* (p. 240). Then 
with some earnestness : " One of the duties of the civil legis- 
lature is to achnoioledge the right of the church in this matter. 
Instead of hindering her exercise of that power, it is called 
upon in the designs of God to promote it, to the utmost ex- 
tent of its poiver, according to the circumstances of time and 
place" (1. c, p. 243). 

And now with increasing emphasis he says : " Parents 
have certainly the right to educate their children — a right 
which the state cannot suppress, or render inefficacious at 
pleasure, nor control arbitrarily. Anterior to the civil 
authority, domestic authority has natural rights, of which 
the state cannot lawfully deprive it" (1. c. p. 243). 

He warms to the work now as follows: "The state can- 
not without a> flagrant injustice arbitrarily take the place of 
the parents, to dispense to their children either physical, 
intellectual, or moral nourishment. The Catholic church 
does not permit, even in behalf of their eternal salvation, 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 369 

for the sake of baptizing them, that children be taken from 
their parents against the will of the latter" (1. c, p. 245). 

"Parents may not directly or indirectly be forced to send 
their children to any particular school if they wish b}^ them- 
selves or through others to give them a suitable education 
elsewhere. They have also the right to demand that where 
schools are supported at the public expense those schools 
shall respond to the demands of the parents — demands 
proposed from the Catholic standpoint, or, at least, that 
the state support Catholic sclioolSy where Catholics ma}^ send 
their children in all security" (1. c). 

And now he tells the state some very plain truths : " The 
state which makes a profession of religious indifference or of 
hostility to Catholic doctrine is not Jit to educate children and 
youthj because it is the will of the Creator that these stages 
of life should be instructed according to the divinely estab- 
lished order ; but the instruction given by teachers who 
are either indifferent or hostile to the true religion, if not 
essentially perverse, is at least very dangerous, even though 
the teacher should altogether abstain from any attack direct 
or indirect on religion — a thing difficult to conceive" (1. c). 

Now he rises to the language of denunciation: "The — - 
state which, against the rights of the church and of the 
family, contrary to the lawful demands of the citizens and 
the interests of society, itself would exercise a monopoly of 
the education of children, would be guilty of unjustifiable 
tyranny, which can be defended only by the merest sophistry'' 
(1. c, p. 262). ^ 

He goes still further : " If a state composed of people * 
of different religious beliefs, itself without any state religion 
but granting freedom of worship to all, cannot give a Catho- 
lic education, it must in such case abstain from teaching alto- 
gether. The establishment of a teaching body in the name 
of such a government would be irrational and unlaioful; for 
without unity of doctrine a body of teachers is incapable of 
exercising the two functions of education, which consist in 



370 THE STATE OF OHIO ?'-S. THE REV. PATRICK F. QUIGLEY. 

forming and nourishing the intellect with trnth, and direct- 
ing the will toward the good" (1. c, p. 264). 

Bravo, monsignor ! bravo ! bravissimo ! 

And the Professor, who thought to put the monsignor 
off in that way ! 

If the court please, I beg to remark that is not we who 
have brought Monsignor Sauve here to administer this 
scathing rebuke to usurping states. We have merely, as 
it w^ere, cross-examined one of the witnesses produced by 
the state, bringing out thus some of his expressions which 
the Professor did not care to *' quote with preference." But 
we begin to understand now the real meaning of the Pro- 
fessor's phrase as to his "preference" in quotation. The 
eclectic system of quotation has its advantages, provided it 
be not interfered with. 

It has evidently been very unpleasant work for the Pro- 
fessor, wrestling with these authorities and trying to mar- 
shal them into line in support of his famous proposition, 
that the state has the right to educate ; for he drops Tapa- 
relli and Cavagnis without a single citation from them as 
to this proposition, and says, with what weariness of spirit 
we can now begin to understand, " We will now close this 
list of authorities and bring in the schema'' 

But why did he not cite something from his favorite 
authors Taparelli and Cavagnis in support of his main 
proposition ? 

Taparelli, while admitting the right of the state to 
establish and conduct such naval and military schools as 
are necessary for state purposes, says that " the educa- 
tion of youth is strictly of parental or domestic right" (Paris 
ed., voL iv. p. 348). 

Is that the reason why he did not cite Taparelli ? But 
h^ still had Cavagnis, who, he tells us, is a professor in the 
Koman seminary. He said he would cite him often, but he 
does not cite him at all on this, the main proposition. If we 
examine we shall probably find that Cavagnis does not sus- 
tain that proposition. Of course if the Professor's propo- 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 371 

sition be true, that the state may give secular instruction 
and also control education, it may give the secular instruc- 
tion in separate schools and exclude therefrom all religious 
teaching ; but Cayagnis, one of the Professor's favorite au- 
thorities, attributes to the church the right of supervision 
over all schools, especially over elementary schools, in which 
he says religion 7nust not he separated from secular instruc- 
ion [Nozione di Diritto, Rome, 1886, n 362), which declara- 
tion is also found on page 16 of the work cited to us by 
the Professor, i.e., Inst. Jur. publ. et eccl., Eome, 1882. 

Professor Bouquillon says on page 12 that " the state 
teaches in the same way that it governs and judges ;" but 
Cavagnis says of that : " The opinion that the office of 
teaching (munus docendi) belongs to the state {esse munus pub- 
licum), like that of judges {sicut illud judicum) , is manifestly 
false (patet falsttasy (1. c, 64.) 

The Professor cannot understand why, if a state may 
provide a court-house, appoint judges, prescribe pro- 
grammes of business, and through that agency judge, it 
may not also provide a school-house, appoint teachers, 
prescribe programmes of study, and through that agency 
teach. The reason, however, is very plain. The state has 
the right to judge because it is the primary function of the 
state to protect rights, preserve peace, and prevent crime, 
and the right to judge is necessary to the execution of that 
function. But teaching is in no way a function of the state, 
therefore in no way can the state have the right to teach. 
Prof. Bouquillon says the state teaches in the same way 
that it judges ; but he thereby shows how the professor in 
the Roman seminary differs from the professor in the 
Washington University ! 

The Schema. 

Now let us see what his great and final authority, his 
wonderful schema, amounts to. I say his schema, for it is 
all his own, known to no one but himself. In undertaking 



372 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

to describe the office and action of the Theologians of the 
Vatican Council, the Professor makes four statements. 

It is recounted that in France at one time a would-be 
scientist had the misfortune to publish his notions on nat- 
ural history, and described a crab as " a little red fish that 
walks backward.^' A real scientist being asked if that defi- 
nition was correct, replied, " Not entirely so. First, it is 
not little ; second, it is not red ; third, it is not a fish ; and 
fourth, it does not walk backward. With these exceptions 
I do not object to the definition." 

The Professor says : 

I. That these theologians were commissioned to prepare 
the subject-matter of the discussions of the Vatican Council. 

II. That they intended to proclaim the right of the 
church to watch over the religious and moral education of 
Catholic youth. 

III. That they "most explicitly" recognized the right 
of the state to educate. 

IV. That they put in the proposed schema the words 
he cites on p. 15. 

The Professor makes those four statements concerning 
those theologians, their function, intention, and actions. 
Not one of those four statements is correct. 

I. It was not committed to the theologians to prepare 
just what subject-matter should be discussed by the coun- 
cil. They were to furnish a draft of a scheme to start 
with, but any bishop-member of the council might propose 
any amendment or any further matter he thought proper. 

II. It was not their intention to proclaim, as stated in 
effect by the Professor, that the right of the church in the 
matter of the education of Catholic youth was limited to 
watching over simply the religious and the moral part, and 
leave to the state the entire direct control of the secular 
part. 

III. It is not true that they " most explicitly" recog- 
nized the right of the state to educate. As to that, they de- 
clared nothing at all in the paragraph he cites ; nor did they 



THE STATE OF OHIO VS. THE KEY. PATRICK E. QUIGLEY. 373 

recognize such right even by any implication, for the only 
words used by them in the paragraph cited by the Profes- 
sor from which even an implication could be suggested was 
where they spoke of a right of " direction," but only as to 
certain schools, and in them only for certain purposes; and 
the Professor himself declares on p. 20 of his pamphlet 
that such right must not be confounded with the right to 
teach, and if so, much less with the right to educate. The 
Professor is not satisfied with simply getting the plainest 
proposition wrong, but he must have variety in error. 
After saying on p. 14 that these theologians " most explic- 
itly recognized the right of the state to educate,'' one would 
expect him to stick to that ; but when he tries to say it 
again only nine pages farther on, this is the way it comes 
out : " We have already seen that the pontifical theologians 
of the Council of the Vatican protest that they do not mean 
to refuse to the state the power of regulating education as 
regards the temporal ivelfare /" (p. 23.) To regulate is to 
watch over, control, and direct ; but, as he has said, that 
does not mean to teach, much less to educate. 

IV. It is not true that they put in the proposed schema 
the words cited by the Professor on p. 15. There are no 
such words in the schema, nor any words to that effect. 

And thus it appears that with the schema, as with the 
other authorities cited by the Professor, there is a great 
difference between the authority itself and the authority as 
the Professor presents it to us. 

If the court please, I will now show what the schema 
really does say with regard to the authority of the church 
in the matter of education. 

The same Pope who rendered the decisions summarized 
in the syllabus selected the theologians who were to pre- 
pare the schema. It will be surmised, therefore, that he 
selected theologians agreeing with the doctrine of the syl- 
labus. When these theologians came to that part of the 
schema which treated of thco'ights of the church, they began 
with a preamble referring to the syllabus of the decisions 



374 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

of Pius IX., and then drafted a proposition vindicating the 
right of the church to make such decisions. 

The decisions concerning education were summarized 
in the syllabus as follows : 

45. " The entire direction of the public schools in which 
the youth of a Christian state is educated, diocesan semi- 
naries to a certain extent excepted, can and must be appor- 
tioned to the civil authority, and that in such a way that 
no other authority has the right to interfere in the disci- 
pline of the schools, the direction of the studies, the con- 
ferring of degrees, or the choice and approbation of the 
teachers. 

46. " Nay, even in the ecclesiastical seminaries the plan 
of studies to be pursued is subject to civil authority. 

47. " The most perfect state of civil society requires that 
the common schools, which are open to the children of all 
classes of the people, and the public institutions in general 
which are designed for teaching letters and the exact 
sciences, and educating the youth, should be exempted 
from the authority, direction, and interference of the church, 
and be subjected to the absolute power of civil authorit}^, at 
the direction of the rulers of the state, and according to the 
manner of prevailing public opinion. 

48. " Catholic men may approve that system of educa- 
tion of youth which is separated from Catholic faith and 
the power of the church, and which regards only or at least 
chiefly the natural sciences and the field of social life on 
earth." 

All of these propositions were condemned by the Holy 
Father Pius IX. as unsound, untrue, false, and not to be 
held or defended by Catholics. 

The proposition which the theologians reported in their 
schema on this point, as a suggestion for the consideration 
of the bishops assembled in council, was as follows : 

"Among the violations of the most sacred rights per- 
petrated in our age, to infect the nations with error and 
corrupt Christian morals amongst them, that one is most 
jDernicious which insidiously contends that all schools are 
to be submitted to the secular power, so that the authority 



THE STATE OF OHIO VS. THE REV. PATEICK F. QUIGLEY. 375 

of the clmrcli to provide for tlie religious instruction and 
education of Christian youth may be altogether thwarted ; 
nay, men have gone so far as to assert that the Catholic 
religion should be altogether excluded from public educa- 
tion, and that the schools should be merely scientific. 
Against this corruption of sound doctrine and morals, from 
the very purpose of the church founded by Christ, to lead 
men, through salutary faith and discipline, by her teaching 
and her guidance, to eternal life, — all must acknowledge the 
right and duty in virtue of which she carefully provides 
that Catholic youth be rightly educated, above all in true 
faith and pure morals." 

The committee of theologians suggested a great many 
other propositions as to other matters. To aid the bishops 
in understanding exactly what they meant by their propo- 
sition, they appended to their reported draft a lot of 
explanatory notes, calling attention to just what they 
intended to cover by such or such a proposition, and also 
sometimes anticipating possible objections by explaining 
what the proposition did not cover, that the bishops might 
add matter to cover such untreated points if they so desired. 

Before reaching the proposition above set forth they 
had already made forty-six such explanatory notes. On 
the proposition in questionntliey made another note. No. 
17, in which they, in effect, called the attention of the 
bishops to the fact that while the language of the foregoing 
proposition as reported by them did not deny the right 
of the state to establish and control purely scientific schools 
from which religion was excluded, yet, as the context showed, 
they were treating only of schools for the education of 
Christian youth of both sexes. The question as to whether 
the state might establish and control scientific and literary 
institutions needed for the legitimate ends of the state was 
not covered or decided by that proposition, but remained 
still an open question. But why did they not explain more 
definitely just what schools they meant? The theologians 
answer this question, but though the Professor on page 29 
cited the words used by them just before and just after tliis 



376 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 

answer, he left the answer itself out. That answer was in 
these words: "Therefore in this place (i.e., in that par- 
ticular part of the schema proper), where there is question 
of a general principle, it was not deemed necessary to draw 
a distinction between the different grades of schools." 
The general principle asserted was that the Church had 
the right to control secular instruction in state schools, in 
so far as necessary to prevent the teaching there from 
injuring the faith and morals of Catholic youth. There 
was nothing said about recognizing the right of the state 
to educate children and youth. The church has always 
denied that the state has any such right ; has always 
asserted that that right, though superiorly in the church, 
by right, as to all, is practically in Catholic parents Avho 
recognize the church and send their children willingly to 
church schools, and practically is also in non-Catholic 
parents who do not recognize the church, but send their 
children to secular schools founded by the state at the 
request of these people ; but the right to teach does not 
belong to the state because of that, but always remains in 
the parents, for, as the Professor says, " the father may 
never lose control of the education of his child " (p. 22). 

The language of part of the note as cited by the Profes- 
sor on page 15 is as follows : " This does not deny to the 
civil power the right to provide institutions of letters and 
science for the attainment of its legitimate end and for the 
good of society ; and therefore the right of the same civil 
power to direct such schools is not denied, in so far as its 
legitimate end demands." 

Of course it is plain that the main proposition in the 
schema does not expressly deny the claim of the state in 
that respect ; but who other than the Professor here would 
ever think of claiming that that proposition in the schema 
as it stands without this note, could be construed as " most 
explicitly " admitting the claim ? If we want to try tc 
understand the motive of the theologians in making that 
note, we may suppose that they were afraid the bishops 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 377 

miglit tMnk that the proposition denied that claim, and 
that the council might reject it in consequence ; wherefore 
they called attention to the fact that this proposition did 
not reach that question at all, relating as it did only to the 
education of Christian youth of both sexes, and that it 
might be adopted by the bishops without their being 
thereby committed to any declaration either way as to the 
other question of scientific and literary institutions for state 
purposes. But it remained for the Professor here to con- 
ceive the idea that this explanatory note was a part of the 
schema, and more wonderful still, that the schema " most 
explicitly " recognized the right of the state to educate 
Christian youth, when in fact it had denied that very doc- 
trine : the whole object of the proposition having been to 
confirm the former decisions denying that very claim, and 
to vindicate the right of the church to make such decisions. 
But there is something else of interest in this connec- 
tion. When the bishops read this explanatory note show- 
ing what was not denied in this proposition, one of them 
at least was not satisfied. He wanted it to go farther in its 
denials, and he proposed for that purpose what we would 
call an amendment — they called it a postulatio. He was not 
satisfied with merely denying the right of the state to have 
schools separate from the church for Catholic children, 
but he wanted it denied that the state should even be per- 
mitted to mix its system with that of the church. This 
was Mons. Grith, the learned Bishop of St. Gall, and we 
may be very sure he conferred with and had the approval 
of other bishops before offering his amendment or postu- 
lation. He objected that " there was nothing said in the 
proposition about mixed schools " (sed nil in eo [schemate] 
dictum est de scholis mixtis), which he described as seats of 
moral contagion, which infect the minds of youth with the 
poison of impiety or of iudifi'erentism. He declared that 
the council could not pass them over in silence, and he 
demanded — 



378 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLBY. 

I. That the council condemn mixed schools, of what- 
ever kind or grade. 

II. That it earnestly exhort bishops, parish priests, 
and parents in the matter ; bishops, to fight with all their 
might against such schools ; parish priests, to try to avert 
Christian youth from them ; parents, never to entrust their 
children to them. 

III. That it admonish the civil magistrates to restore 
to the church the schools of Catholic foundation taken from 
her by violence and unjust legislation, and to grant to 
Catholics that freedom of instruction which belongs as of 
right to paternal authority. 

If the Professor try to justify his having represented 
note 47 as part of the schema, in that it was printed in 
connection with the schema, and is therefore to be in some 
sense considered as a part of it, why then does he not cite 
this proposed amendment, and tell us that the schema 
"most explicitly" declared that the state had no right to 
teach, even in mixed schools, where the church was invited 
to take a certain part in education ? Ah ! That would be 
to contradict himself. But would not even that be better 
than to contradict the truth ? 

The council is not yet closed ; it is only temporarily 
adjourned. That amendment is still pending, and may yet 
be adopted ; though when the question comes up some 
bishops may answer that it is not necessary, as it is notori- 
ous that the church has repeatedly condemned such schools, 
as Leo XIII. declared in his letter to the French bishops, 
Feb. 8, 1884 ; but the Professor ignores the original propo- 
sition, ignores the pending amendment, and asks us to take 
instead the explanatory note of the committee as the doc- 
trine of the schema ! I leave to others to explain why he 
does this. 

I claim, however, that I have done what I undertook to 
do in this connection. I claim I have shown that as to his 
first proposition, that the state has the right to educate, 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 379 

the Professor is not supported by any of tlie authorities he 
cites. 



Prof. B.'s Second Proposition. 

But the Professor has another proposition : he has two 
strings to the bow he bends for the purpose of sending an 
arrow through the heart of the rights of the church in 
education. The first having so ingloriously snapped, he 
adjusts the second : 

" The state has the right to control education in all 
schools in which it is given." 

The Professor does not in his pamphlet state his second 
proposition all at once in these words, but he does for- 
mally state it on p. 23 as follows : " Having thus cleared 
the ground, we affirm that the state has authority over 
education." His clearing of the ground consisted in stating 
that though the state has no authority over theological 
schools, or the teaching of religion, it may govern all schools 
of human science, whether founded by itself, or by indi- 
viduals, families, or associations ; wherefore his proposition 
on page 23 is practically as I have stated it. 

What he himself meansHyf that proposition it is impos- 
sible to learn from his pamphlet, because of his persistent 
failure to distinguish between education and secular in- 
struction ; but secularists claim that it means this : " That, 
even if the state has not the right to itself directly and 
absolutely teach, yet it has the right to control all schools 
of human science and prescribe the studies there, and fix 
the amount of such study and make it compulsory," which, 
they sa}^, is sufficient for their purpose. 

Again I begin by stating what Catholics admit as to 
state control in the matter. The state in the exercise of 
its primary function to preserve order may control all 
schools in so far as is necessary for the preservation of 
order and preventing the teaching there of treasonable 
doctrines. 



380 THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 

In the discliarge of its secondary function, as aiding in 
securing tlie general good, it may control all schools so far 
as necessary for securing the health and safety of pupils, 
and for preventing the teaching there of such immorality 
as would endanger the well-being of society; but it can 
never have the right to educate, nor even to teach human 
knoAvledge to children and youth, nor to establish schools 
except where schools are needed beyond what the parents 
have been able to supply. 

The Professor's second proposition then is, that " The 
state has the right to control all schools of human science." 

His first formal approach to this proposition is on page 
23, where he uses this language : " We have already seen 
that the pontifical theologians of the Council of the Vatican 
protest they do not mean to refuse to the state the power 
of regulating education as regards the temporal welfare." 
As to that, I must claim that we have seen nothing of the 
kind. What " we have already seen " in the language of 
the theologians was merely a declaration that it was not 
denied that the state might found certain schools and 
direct them to a certain extent. It is strange that the Pro- 
fessor should try to make these " pontifical theologians of 
the Council of the Vatican " announce a doctrine so dis- 
tinctly condemned by the church. 

I said before, it was surprising to see in how many ways 
the Professor gets things wrong. First, the declaration he 
cites on p. 15 as being from the schema is not in the 
schema. 

Second, even if it were, it does not say what he imputes 
to it. 

What it says is that in the opinion of the committee the 
proposition as contained in the schema does not deny the 
right of the state to direct certain schools founded by the 
state so far as the legitimate ends of the state demand. 

Neither does it admit the right of such direction. It 
simply does not decide that question ; but the Professor 
says that by these words " they protest they do not mean to 



THE STATE OF OHIO VS, THE BEY. PATRICK F. QUIGLEY. 381 

refuse to the state the power of regulating education as 
regards the temporal welfare." First, why does the Pro- 
fessor reject the word " direction " used by the committee 
and substitute for it the word " regulating " ? The com- 
mittee spoke of the direction of schools {ad directionem 
scholarum) meaning, we may suppose, those particular scien- 
tific schools so established, but only the directing of those 
schools so far as the legitimate ends of the state demanded ; 
but the Professor changes this, and says they recognized 
that the right was, not that of directing certain special 
schools founded by itself, but that of" regulating education," 
and regulating it as far "as regards the temporal zvelfare.^^ 
No qualification as to what temporal welfare — whether of 
the individual, of society, of the church, or of the state ! 
And notice the change from certain schools founded by the 
state to education in general. What shall we say of an 
opponent who first puts up a spurious authority and then 
makes it palter with us in such a double sense ? 

But there is more of this tampering with the schema ; 
more of this representing certain declarations as being in it 
which are not in it, and then representing those declarations 
as saying things which they do not really say. The Pro- 
fessor on p. 29 gives eleven Latin lines as being found in 
the schema. But those lines are not in the schema : they 
are merely a continuation of that explanatory note No. 47. 

The Professor throws out those Latin lines before the 
public of this country, and declares that they support his 
declaration, that the church admits she has no right to 
directly control the teaching of human science even in the 
schools she herself establishes ; that such control belongs 
to the civil powder. 

Now the church has two titles under which she may 
justly claim the right to control education : 

First. By reason of her divine constitution and her con- 
sequent mission to teach all nations, by which she has con- 
trol of all religious instruction and of all secular instruction, 
not only in her own schools, but even to the extent of having 



382 THE SI ATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 

the right to enter all state-founded schools, and prohibit 
the teaching there of anything contrary to faith or morals. 

Second. As an association of individual Catholics she 
has the right (as admitted by the Professor) to establish 
and control her own schools in all things, with no right of 
the state to interfere therein, except as noted for order, 
hj^giene, etc. 

But the Professor says the language quoted by him 
shows that the church admits she has no right to direct con- 
trol over the secular instruction given in her own schools. 
Now the language does not say that : it simply says she 
does not claim that right as to state schools directly by 
reason of her divine right to teach, but indirectly by reason 
of the right and duty she has to see that nothing is taught 
therein endangering the faith or morals of Catholic youth. 
There is nothing said about what kind of a right she has to 
control it in her own schools. 

Now let us put those eleven lines into English and see 
which of us is right as to this disputed point. It may be 
noticed that toward the end of the quotation the Professor 
has some dots to show that he has left out a part of the 
text. I will bring forward the omitted part in parentheses. 
This now is the translation : 

" It is not asserted that the ecclesiastical power has, be- 
cause of its divine constitution, the right to positively direct 
(or control) schools in so far as science and letters are 
taught therein ; but there is asserted for the church the right 
to the direction of schools in so far as the end of the church 
demands, and therefore there is asserted the right and duty 
(of the church) of watching over the faith and Christian 
morals of Catholic youth, and therefore to take care that 
these precious gifts be not corrupted by the very training 
given in these schools. This right of the church considered 
in itself extends no less to higher than to lower sch-ools. 
(Now here are the words omitted by the Professor : ' There- 
fore in this place (i.e., in the schema proper), where there is 
question of general principle, it was not deemed necessary 
to draw a distinction between the different grades of 
schools.') For the rest (ceterum) it is plain that the exer- 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 383 

cise of this right must be different as it is applied to dif- 
ferent objects (i.e. different grades or kinds of schools)." 

It must be remembered that the above citation is a part 
of note 47, wherein the theologians state what they consider 
is really the effect of the declaration in the extract from the 
proposed schema, as already set forth herein. If we turn 
to that passage we find that there is nothing whatever said 
in it about the church recognizing any right of the state to 
intrude itself into church schools to control secular instruc- 
tion there, but on the contrary denies that right to the state ; 
and even goes farther, and asserts that the church has the 
right to enter into the schools of the state and see that the 
teaching there be not injurious to the faith and morals of 
Catholic youth. 

Keeping this declaration in mind, the meaning of the 
first words of the note 'No. 47 will be plainly apparent. 
These words are : " It is not denied [by this] that the state 
may provide institutions for science and letters to its own 
legitimate end, and for the general good ; and therefore it is 
not denied that the state may have the direction of [those ?] 
schools in so far as its legitimate end demands." The most 
that these words can mean in favor of the state is that the 
state may direct the secular instruction in the schools it 
founds, so far as its own end demands, subject to the right 
of the church to supervise that secular instruction, and to 
see that there be nothing in it contrary to faith and morals. 
Then comes the language of those eleven lines to explain 
that the church does not claim that right of supervision of 
secular instruction in state schools by reason of its divine 
mission of teaching the truth, but by reason of its right and 
duty to watch over the faith and morals of Catholic youth. 
But we have seen that there was at once a proposition from 
one of the bishops to change the language of the schema 
itself, and we do not know how it will read when it shall 
have been adopted. It is absurd to talk of the language of 
this explanatory note or even the schema itself as being a 
doctrine of the church on the subject. 



384 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

The Professor seems to understand and admit a portion 
of this on p. 29, where he cites these eleven lines, where he 
admits the church has a right to an indirect control over 
secular instruction even in state schools, but strangely 
assumes that even in its own schools it has only the same 
indirect control, forgetting that he has already admitted 
tli^t, merely as an association, the church has its own right 
to educate or teach, and that he has defined teaching to 
mean the establishing of schools, appointing teachers, and 
prescribing methods of study, and that it must have the 
right to control the schools it founds, subject always to 
state control as to order, hygiene, etc. 

Therefore the Professor fails to show, either by the 
schema or any notes to it, any admission of any right in the 
state to have any control over private schools beyond police 
and sanitary matters. 

Now what do his other authorities say on this point ? 
Sis next authority is as follows : " Cardinal Zigiiara admits 
the state's right of overseeing that the intellectual and 
moral education of its future citizens be maintained within 
the limits of honesty and truth" (p. 23). That is simply a 
right of veto against dishonest or immoral teaching, and 
yet the Professor builds up from that a right to take entire 
charge of everything connected with a private school — to 
prescribe text-books and course of study in all secular 
matters, hours of study, terms of schools, minimum of in- 
struction, compulsory education, and all the rest. Now 
this statement of the Professor as to what Cardinal Zigiiara 
teaches raises a question which it seems to me should be 
of some gravity for the Professor and his friends. There 
has just been handed to me a copy of the Civiltd Cattolica 
of January 2, 1892, and on page 82 is a paragraph which I 
translate as follows: " But the authority of Zigiiara is not 
doubtful, since he, in the body of the article cited by the 
Professor, explicitly enumerates and determines what are the 
rights in education which he concedes to the state, and in 
vain will be sought among those enumerated and conceded 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 385 

lights that of compulsory elementary instruction." And 
then we are given to understand that Zigliara adds these 
words : " Cetera [that is, the rights not enumerated] quae 
sibi arrogat status vehementer negamus/' that is to say, "As 
to the other rights which the state arrogates to itself, ive 
vehemently deny them.''' Yet on p. 27, in the chapter where 
the Professor is trying to prove the right of the state to 
insist on compulsory education, he says : " Nor does Car- 
dinal Zigliara dare deny that power to the state " ! I said 
this raised a grave question, — I mean it would be so for 
some ; but, for the Professor, an error more or less probably 
does not matter. 

His next authority is stated as follows : " A Eoman 
canonist, in a book written for the use of bishops specially, 
deplores the fact that the authority of the church over 
schools is too often disregarded ; but he adds immediately, 
that he does not mean to deny to the state the direction 
and patronage of the natural sciences, nor to diminish the 
civil jurisdiction in regard to them. (Lucidi, de vis. Sac. 
Liminum, t. ii. c. 7, § 2, a. 4, n. 207.)" 

The Professor does not tell us what kind of schools this 
canonist was writing about, but evidently he was com- 
plaining that the authority of the church over state schools 
was not respected. But how utterly inadequate this cita- 
tion is to prove that the state may control education ! Yet 
the latter is the Professor's proposition. Does Lucidi even 
tend to declare that the state may control secular instruc- 
tion in private schools ? 

Let us see what further the Professor has to say on this 
point. His next words are : " We refrain from quoting 
other authorities, such as Sauve, Cavagnis, etc." From 
what we have seen of Sauve and Cavagnis we do not wonder 
that the Professor does not care to bring them forward 
again. So there is Professor B.'s array of authorities in 
support of this second proposition that the state may con- 
trol education. Not one of them supports or even looks in 
the direction of tending to support his proposition ! They 



386 THE STATE OF OHIO VS, THE EEV. PATRICK F. QUIGLEY. 

are all talking about something else ; and we are even forced 
to seriously ask whether it can reasonably be asserted that 
the Professor himself is always sure of what he is talking 
about. He is talking about the state having control of 
education, but he must certainly think that he is talking 
about something else, viz., the right to teach human knowl- 
edge. He knows very well that Catholic authorities gener- 
ally distinguish between education and the mere teaching 
of human knowledge. The latter they call secular instruc- 
tion, which of itself is only a small and comparatively 
unimportant part of education ; they understand by educa- 
tion the nurture, development, and proper training of all the 
faculties, physical, mental, and moral ; but the Professor 
uses the terms and phrases education, instruction, teaching, 
teaching of human science, having human knowledge taught 
by others, etc., in such a way that very often we are unable 
to know exactly what he means, and that is sufficient to 
account for much of the lack of harmony between him and 
standard Catholic writers. 

But there is another more fruitful cause of confusion. 
The Catholic writers cited by the Professor generally speak 
of the rights of the state considered from three points of 
view : First, as considered in itself ; second, considered as 
concretely established, and as in union with the church ; 
third, as concretely established, but separated from the 
church. 

The Professor says, first, that he is treating of the state 
considered only in itself, and not as making any practical 
application of the principles announced — which brings him 
at once in contradiction with most of the declarations of 
the othef authorities, who are generally writing of practical 
matters in modern states, which states are in conflict with 
the church. Second, the Professor after a while begins to 
make practical applications of his theories to a state con- 
sidered only in itself, which is of course very different 
from applying these principles to a state considered differ- 
ently, whence comes more confusion. Third, the Professor 



THE STATE OF OHIO VS. THE EEV. PATEICK F. QUIGLEY. 387 

finally declares that lie is talking about the rights of a state 
considered in itself, yet only as one of four factors in educa- 
tion, each with different rights, but to what extent different 
he will not undertake to define, yet all working in a har- 
monious combination, the means of obtaining which, how- 
ever, he will not undertake to explain. 

I think it must be admitted now that the authorities 
cited by the Professor do not answer the purpose for which 
he cited them. For what purpose did he cite them ? To 
prove the truth of his proposition that the state has the 
right to educate ? Oh, no. He tells us on p. 13 for what 
purpose he was going to cite them, namely, " to show that 
all Christian nations have alicays held that opinion'^ That 
has nothing to do with whether the proposition is really 
true or not. Christian nations have held opinions about 
slavery and some other things, which opinions are not now 
recognized as expressing the true doctrine in the matter. 
What he really intended to cite those authorities for, as 
stated in his preface, was to show what is the doctrine of 
the Catholic Church with regard to the truth of his propo- 
sition. Now this calls attention to another somewhat 
important fact, and that is, that the state here is not going 
to be governed in its judgment as to the truth of that 
proposition merely by what the Catholic Church thinks 
about it. 

The state here does not recognize that the Catholic 
Church is infallible in its judgments as to what are the 
rights of the state. It will treat the opinions of learned 
writers in the Catholic Church with what it thinks becom- 
ing respect, but it does not hold itself bound by them. 
The state will be governed in this matter, in so far as there 
is question of the absolute right of the state, considered 
apart from conscience questions, only by what it thinks is 
the teaching of natural law and the constitution of the 
state. Why, then, have I taken so much pains to show 
what is the teaching of the Catholic Church on this ques- 
tion? Because there is one aspect of this case in which it 



388 THE STATE OF OHIO VS. THE KEV. PATRICK F. QUIGLEY^ 

does become of vital importance to tlie state to know wliat 
doctrine is really held and tauglit by the Catholic Church 
on this point, and what is the effect of certain clauses in 
the constitu^iion with regard to such fact, and that aspect 
is brought into view by the claim set up by Catholics 
here, that they cannot in conscience permit their children 
to be compelled to attend the elementary schools of the 
state. The state will want to know whether that is really 
true or not. If the state is satisfied that that claim is true, 
it will respect it, and hold that this law is unconstitutional 
because of the fact that it violates rights of conscience, 
guaranteed by the state constitution. It may think that 
belief erroneous, but if it be convinced that it is really a 
doctrine of their church, religiously and conscientiously 
believed by them, the state will respect their rights of con- 
science, and relieve them from the operation of the law. 

The Professor practically recognizes that it is not 
enough to merely show that the church believes as he 
says, because, after having, as he thinks, proved that 
Catholic writers agree with him, he nevertheless feels the 
necessity of showing to the public that, aside from all con- 
sideration of what Catholic writers may say, the truth of 
his proposition can be proved from pure reason alone, and 
he then undertakes to do it. 

It was because of this that I thought it well to take 
from him, first, all support claimed by him from his so- 
called authorities, and leave him standing alone, wfth only 
such strength in his position as he could draw from pure 
reason alone. I will now undertake to show that his rea- 
soning is as defective as his authorities. 

Peofessoe Bouquillon's Keasoning. 

When a general wishes to conduct a campaign in a 
country from which he is separated by a chasm which he 
must cross, he begins by throwing a bridge across the 
chasm. To do this he first selects some solid ground from 



THP] STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 389 

wLicli to start. Thence lie pushes out a bridge. If tlie 
base is solid and the bridge is sound he may pass over 
and begin operations in the country beyond. If the base 
is bad or the bridge fall short or fall altogether, he cannot 
pass. 

When a logician wishes to occupy a position in a new 
field to which access has not yet been provided, he bases 
himself first on what he thinks a sound logical proposition. 
Thence he pushes forward as many subsidiary proposi- 
tions logically connected with the main proposition as he 
finds necessar}^ to reach the point he is aiming at. If all 
has been well done, he passes on in safety. 

Professor Bouquillon wants to get to the proposition 
that " The state has a right to educate." He proceeds as 
follows : 

I. Every individual has the right to educate. 

II. If one individual may educate, an association of 
such individuals may educate. 

There is the Professor's logical bridge, over which he 
says the state may pass to enter and ]Dossess the field of 
education, because the state is an association of individuals ; 
and "It were unreasonable," he says, "to refuse to the 
state that which is granted to every legitimate association" 
(p. 11, last four lines). 

How charmingly simple that is ! There is one trouble 
about it, however, — the bridge does not anywhere connect 
with solid ground : it is all in the air ; 'n pretty conceit, but 
of no use as a bridge. 

The starting point of the bridge is badly chosen. It is 
in the last degree absurd to say that every individual has 
the right to educate. The poor tramp that infests the road 
may have the right to break into my house and take a loaf 
of bread, if it is necessary to save him from starvation ; but 
is it necessary for me to deny his right to break into my 
house and undertake to educate my children without my 
consent and against my will ? I think I might safely stop 



390 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

right here, and claim that it is already apparent that the 
Professor's bridge will not serve his purpose. 

But if we follow the Professor a little, we will find that 
he himself destroys this bridge. He does it in this way. 
Immediately after announcing the proposition that every 
individual has the right to educate, he explains what he 
means by education. He says it is, first, *' To communi- 
cate what we know to one who does not know." Second. 
" To communicate, after a continuous, methodical fashion, 
knowledge relative to religion, morals, letters, sciences, the 
arts." Third. " To instruct and train children and youth." 
The vision of children and youth thus called up seems to 
make him aware of his mistake in saying that every indi- 
vidual has a right to instruct and train them, for he imme- 
diately qualifies his definition of education by restating it 
as a right " to communicate the truth/' and now having got 
on the right road he goes farther, and ad(J.s : *' To communi- 
cate it to tJiose who wish to receive it,'' and then he goes back 
and reforms his proposition thus : " Every individual has 
the right of teaching what he is capable of teaching, to whom- 
soever will accept his teaching" (pamphlet, p. 8, §§ 1 and 2). 

Thus he abandons altogether his claim that every indi- 
vidual has the right to educate, and limits it to the right to 
teach, and then to teach only the tj^uth, and to teach that only 
after he has proved himself capable of doing so, and even 
then to teach it only to those who are willing to accept his 
teaching. 

Then, according to the Professor's own claim, no indi- 
vidual may undertake even to instruct children without the 
consent of the parents ; and since he claims that the state 
has the same right that individuals have, then according to 
his own declaration the state has no right to force its in- 
struction on children ivithout the consent of the parents. The 
Professor has thus denied his own proposition, that the 
state has the right to educate; he has done more, — he has 
declared that, following that line of argument, it has not in 
itself even the right to instruct. 



THE STATE OF OHIO VS. THE REA\ PATRICK F. QUIGLEY. 391 

But lie is determined to convey the impression that the 
state has the right to educate, and so, whether consciously 
or not I cannot say, he* resorts to a stratagem. He advances 
another general proposition, that the state has the right to 
educate, goes through the form of a logical argument, and 
at the end draws the entirely unprepared-for conclusion 
that it has the right to teach science ! If I knew he did this 
consciously, I could say that because of the cloud in which 
he thus enveloped the matter he fancied the substitution 
of an entirely different conclusion for the one the listener 
was told to expect would not, be noticed. Lowering his 
claim therefore, in his own mind, but not changing his 
proposition to accord with it, he advances to a new argu- 
ment. This time he will avoid his first mistake of building 
on the individual, and will put his argument in a way that 
cannot be resisted. He will put it in a way, he says, 
" thoroughly apodictical " and in regular syllogistic form, 
with a nominated "major," a designated "minor," and, as 
he also says, with an " impregnable" conclusion. 

"When a University Professor strips for a syllogism with 
such grim determination as that, it behooves us to pay close 
attention. Here, then, is the celebrated syllogism : 

Peoposition : The state has the right to educate. 

I. The Major. " Civil authority has the right to use all 
legitimate temporal means it judges necessary for the at- 
tainment of the temporal common welfare." 

II. The Minor. " Among the most necessary means for 
the attainment of the temporal welfare of the common- 
wealth is the diffusion of human knowledge." 

III. The Conclusion. " Therefore, civil authority has 
the right to use the means necessary for the diffusion of 
such knowledge, that is to say, to teach it, or rather to have 
it taught by capable agents " (p. 13). 

The Professor says of his major that he thinks it 
cannot be denied. That depends on how it is understood. 



392 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. , 

The word " legitimate" is a very elastic one, and may be 
expanded so as to cover tlie objections ; but this major, 
considered in the unqualified form m which it is stated, 
cannot be accepted. 

It is error to say unqualifiedly that the state has the 
rio-ht to use all legitimate means necessary for the common 
good. There are means necessary for the common good 
which are legitimate, but not always legitimate to the state. 
The diffusion of religion is a legitimate means of safety 
to the state, but not a means legitimate to the state. The 
diffusion of marriage is a legitimate means, etc., but not 
legitimate to the state. The diffusion of knowledge is a 
legitimate means, but not legitimate to the state, except in 
so far as the state may supplement the action of parents. 
As far back as the time of Aristotle this distinction was 
recognized, for he declared : ^'Non omnia guce necessaria sunt 
ctvitafi, partes sunt civitatis'' — " Not all things necessary to 
the state are of the state" (Arist. 2, Politic. 7 ; Civiltd Cat- 
tolica, Jan. 2, 1892). Parents, with church rights respected, 
have the first and the exclusive right to use this legitimate 
means. The state has not the paramount, nor any, right 
to use it, except subsidiary and supplemental to the right 
of the parents. 

As to the minor : that is faulty, first, in that it is broader 
than the major. The minor alleges that diffusion of knowl- 
edge is a necessary means, therefore it may be used, etc. ; 
but the major did not assert that all necessary means 
might be used, but only those which were legitimate. 

Second, the major spoke of legitimate temporal means 
for the attainment of the temporal common welfare. The 
minor speaks of means for the temporal welfare of the com*- 
momvealth. The coynmomvealth is only another name for the 
state. Now, the welfare of the state may be very different 
from the welfare of the people. The power and grandeur 
of the state may be unnecessarily exalted at the expense of 
the good of the people, as our national economists in naval 
matters now contend. The minor is not in harmony with 



THE STATE OF OHIO VS, THE EEV. PATRICK F. QUIGLEY. 393 

the major on this point. Why this div.ergence ? Is it for 
the purpose of hiding the fallacy ? 

Third, if the minor is to be considered with reference to 
the conclusion, which is that the state may diffuse this 
knowledge by teaching it, and may therefore compel the ac- 
ceptance of such teaching, then it is faulty in ngt laying the 
foundation for such conclusion by showing that compulsory 
diffusion of such human knowledge is a necessary and a 
temporal means for the attainment of the temporal com- 
mon welfare, and that the use of such means is legitimate 
to the state. That is what was to be proved, that those 
means were necessary and temporal, and that the state had 
a right to use them. 

As to the conclusion, that is faulty in that it is diverse, 
irrelevant, and illogical. 

It is diverse, because it is not only double, but quad- 
ruple. It concludes, first, that " the civil authority has 
a right to use the means necessary for the diffusion of 
human knowledge." The Professor is not satisfied with 
that ; so he rejects that, and says it proves that the state 
has the right to teach it. Still he is not satisfied, and adds 
that what he means is that the right of the state is the 
right to have it taught by capable agents ; but at the end 
of a long explanation, ending on page 16, he rejects all 
these conclusions, and, as a last effort to express his mean- 
ing, says : 

'* Our conclusion, then, is this : The state has been en- 
dowed by God with the right of founding the schools that 
contribute to its welfare." 

Now, which one of these conclusions are we to consider 
the Professor wants to have appended to his syllogism ? 
How is any one to tell whether his reasoning is " apodicti- 
cal " or not, if we cannot know certainly what it is that he 
claims he has proved ? 

If, as indeed would be only fair, we take his last 



394 THE STATE OF OHIO VS. THE KEV. PATRICK F. QUIGLEY. 

definite statement .of his conclusion as the one he wishes 
to stand by, then I proceed as follows : 

The conclusion is irrelevant. It is irrelevant, because 
it does not conclude to the proposition to be proved. 
The proposition is that the state has the right to educate ; 
the conclusipn is that the state has the right to found the 
schools that contribute to its -welfare. That is another 
matter altogether, and therefore entirely irrelevant in this 
connection. 

With a logician we would go no further. A logician can 
understand when it is shown that he has missed his mark, 
and he either surrenders or begins anew. But the Profes- 
sor's chair is that of moral philosophy. 

He seems to think that if he has shown a right to found 
a school, that proves the right to teach all things that may 
be taught in it. Of courr^e with a mind that draws conclu- 
sions in that way it is useless to try to argue directly. The 
only way one may hope to get it to see the point is to throw 
a side light on it by way of illustration ; and of course illus- 
trations are not expected to coincide at all points. Like 
spheres, they may touch at one point only ; but if that is 
the point in question, it is sufficient. Now in England the 
lord of the manor has the right to found a church, in the 
sense of erecting a building and providing support for the 
preacher. He has also in many cases the right of naming 
and practically appointing the preacher. But no one im- 
agines that because of that he has the right to preach 
there or to control the preaching. It is not a logical 
sequence. 

There is another objection to this conclusion. It is too 
broad. It says the state has the right to found the schools 
that contribute to its welfare. It may therefore forbid any 
one else to found any of them. But this contradicts the 
Professor's own admissions, that anybody who likes may 
not only found a school, but may teach in it to whoever 
chooses to come to him. 

The Professor's third conclusion, that the state has the 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 395 

right to have human knowledge taught by capable agents, 
is also irrelevant. The question was, whether it had the 
right to do the teaching itself, — whether it had itself the 
right to educate. No one denies that the state has a right 
to have human knowledge taught by capable agents ; but 
what human knowledge has it a right to have taught to 
children and youth, and who is to say who are the capable 
agents for such work ? That is the very point at issue 
here. If the Professor hael asserted that the state has the 
right to name the agents, then there would have been mat- 
ter for dispute. Our claim is that the parents are the ones 
who have the right to name the agents in the care of the 
education of children and youth ; and the Professor him- 
self, in speaking of the right of parents in the education of 
their children, says : *' They may teach their children them- 
selves, or get them taught by others" (p. 22). This is very 
much the way in which he states here tlie right of the state 
to teach — that it may do it itself, or rather have it done by 
others ; but when he spoke of the parents having it done by 
others, he added : " They may choose the masters to whom 
they confide them, determine the sciences they wish to be 
imparted to them, the means of correcting them." If the 
parents have all that right, how is the state going to 
appoint " the capable agents" ? If the Professor had 
stated here that the state had the right to make that 
appointment he would have contradicted himself. But he 
did not say that the state had the right of appointing these 
agents : therefore we must take this omission in such sense 
as will harmonize with his other declarations ; that is to 
say, that the state has the right to urge parents to appoint 
these capable agents, and thereb}^ cause the diffusion of 
human knowledge to proceed. But if that had been his 
conclusion here, it would have been not only irrelevant, 
but contradictory to his proposition that the state has the 
right to educate. 

There is another objection to this conclusion. It is 
claimed that it follows from the premiss that the state has 



396 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

the right to use tlie means for tlie diffusion of humto 
knowledge : it is also claimed tliat the state has a right to 
found schools for that purpose ; but in another place, page 
23, the Professor says the state may control not only the 
schools it founds, but all schools founded by others for the 
diffusion of human knowledge : therefore the state has the 
right not only to use but to control the means for the dif- 
fusion of knowledge. He says the state teaches not only in 
what are technically known as schools, but also through its 
Legislature and through its courts, and emphasizes this by 
adding that " the sentence of a tribunal is likewise an edu- 
cational agency." The Press is also an educational agency, 
and as a means for the diffusion of human knowledge it 
surpasses all others ; therefore the state may establish 
newspapers, and appoint capable agents to teach through 
them and compel people to read them, and may control 
all newspapers established by others and compel them to 
teach the same doctrine on all questions as taught in the 
state organs, on pain of suppression. But we cannot admit 
that ; therefore we cannot admit his conclusion, nor the 
premiss from which it is drawn. 

The Professor's second conclusion is that the state has 
the right to teach human knowledge. We may pass that, 
because the Professor rejected it himself, immediately it 
was uttered, by saying, in effect, that he did not mean that, 
but rather to have it taught by capable agents, and we 
have seen what that can mean. 

We get back now to the Professor's first conclusion that 
the state " has the right to use the means necessary for the 
diffusion of human knowledge." Even this conclusion is 
irrevelant. The proposition is that the state has the right 
to educate. The Professor is a Doctor in the Catholic 
Church, and he says he is trying to show what is the true 
doctrine of the Catholic Church with regard to the right of 
the state in education. Either, then, he knows what the 
Catholic Church understands by the education of children 
and youth, or he does not. If he does not, we have no contro- 



THE STATE OF OHIO VS» THE BEV. PATEICK F. QUIGLET. 397 

v^rsy with him here. If he does, he knows he did not dare 
make his conclusion accord with the proposition that the 
state has the right to educate. And he did not make it 
accord. Therefore what business have we with it here ? 
It has nothing to do with the proposition. Either he must 
change his proposition or change his conclusion. If he 
conform his conclusion to his proposition, he goes out of 
the church. If he- conform his proposition to his conclu- 
sion, where will he be as to the argument ? 

I fear it may be thought by some that I am unduly 
disparaging the Professor's logic in my desire to impeach 
his conclusions. A college president has published a 
review of this pamphlet, and in commenting on Dr. Bou- 
quillon's logic says : " To any one acquainted with the 
rules of correct reasoning this pretended argument must 
appear like a caricature. It sounds like a bad joke perpe- 
trated upon the dull members of a class in logic." Closing 
his review he says : " Examined from the standpoint of 
logic, the Professor's work is unsound and sophistical. 
Examined from the standpoint of literary honesty in deal- 
ing with his authorities, it is thoroughly untrustworthy." 
(Prest. Higgins, Detroit.) And the Civiltd Cattolica of 
Eome, of Jan. 2, 1892, after reviewing and condemning the 
Professor's reasoning, is so astonished at its absurdity that 
it says that many times in reading this pamphlet a doubt 
came into their minds whether it was gt,nuine — whether it 
really came from the same author whose work on moral 
theology they praised in August last ; adding, " If it be, 
then we must exclaim, ' Quantum mutatus ah illoP '* 

If his friends say that all this is unfair ; that we know 
very well what his proposition really is ; that he showed 
plainly enough that by state education he meant only state 
teaching of human science in its own schools, and that 
we should gather his meaning from all his utterances on 
the subject and not from his formal proposition, — I can 
only say that, however well that might do for " Moral Phi- 
losophy," it will not do for " apodictical reasoning" and 



398 THE STATE OF OHIO VS. THE RET. PATRICK F. QUIGLEY. 

"impregnable conclusions." We have seen the shifting, 
varying nature of his " conclusion," and have tried to pur- 
sue it throughout all of its chameleon changes and combat 
it in all its protean forms, and we were able to do that be- 
cause we had all the time a fixed proposition with which to 
compare it ; but if the " proposition" itself is to also become 
elusive, it will be impossible to do anything with the ar- 
gument. We must simply note the fact that he has failed 
to prove the proposition proposed, and pass on. 

If, however, he or those who cite him here will agree 
that what he really means by his proposition is that the 
state has the right to teach human knowledge, I could 
answer : 

a. The only legitimate conclusion from his premises, 
granting the truth of them, is, that the state has a right to 
have some amount of human knowledge diffused to some 
extent among its people, and has the right to use all means 
legitimate to the state to secure such diffusion. 

Now human knowledge is necessary for two purposes : 
first, for the protection of the state ; second, for the general 
good. That which is needed for the protection of the state 
is the training of adults in the art of war, and possibly 
diplomacy ; hence the need of naval and military and pos- 
sibly diplomatic schools. A general in the field needs to 
know not only how to direct a siege, but how to draw con- 
ditions of truce or surrender. For this a knowledge of his- 
tory, literature, human nature, and many other things are 
necessary. The state has need therefore of naval and mili- 
tary schools, in which shall be taught not only the art of 
war, but all that goes to make a thoroughly informed and 
well-educated man. No one denies the right of the state 
to found schools of that character, and to have the neces- 
sary human knowledge taught therein by capable agents, 
and that the state may appoint the teachers of such science 
and literature and prescribe the courses of study, subject 
to the one condition that nothing shall be taught there con- 
trary to the faith and morals of the pupils, and as to that 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 399 

part that the church has supervision ; therefore, as to that 
kind of human knowledge which is needed for the imme- 
diate protection of the state, it may be admitted that the 
state has the right to teach it, but it does not have that 
right because it is for the general good. It has it because 
it is necessary for the performance of its primary function 
of preserving order. It has that right of teaching as an 
original essential right, without which it could not perform 
its primary function. 

K The right of the state to promote the general good is 
only a secondary and accidental right. State action as to 
that may be had only in aid of and supplemental to private 
effort. The teaching spoken of under the previous head is 
a crtfferent thing altogether from the general education of a 
people. Diffusion of knowledge among the people, in the 
sense of what is for the general welfare, means the educa- 
tion of children and youth. Granting the conclusion that 
the state has the right to have that knowledge taught " by 
capable agents," it does not follow that the state is itself 
the capable agent, or that it has the right to compel the 
people to accept its judgment as to who are capable agents. 
I have shown, I think, that even by natural law the right to 
impart, direct, and control that teaching rests with the 
parents ; and the Professor himself admits that the parent 
may never lose control of the education of his child. 

Therefore I think I may safely claim that the Professor 
has not proved by right reason alone his own proposition, 
that the state has the right to educate ; nor even the sug- 
gested proposition, that the state has the right to teach 
human science to children and youth. 

As to his second proposition, that the state has the right' 
to control secular instruction in private schools, he makes 
no attempt to prove that by any " apodictical " or other 
reasoning : he simply asserts it gratuitously, and the only 
reply needed is Quod gratis, etc. 

Therefore, since he has proved these two propositions 



400 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

neither by reason nor by authority, he has not proved them 
at all. 

The question then naturally presents itself: Has the 
Professor shown anything by this pamphlet and if so, what 
is it? 

The Bard of Avon tells us that — 

** There is some soul of goodness in things evil, 
Would man observingly distil it out. " 

Let us see what we can get from this pamphlet. 



Prof. Bouquillon's Meaning. 

What, then, is the real meaning of Prof. Bouquillon's 
pamphlet on education ? As I have remarked before, it is 
difficult to say what he means. On one page he states a 
proposition in the broadest possible manner, with no quali- 
fication whatever. On the next or a subsequent page he 
pares that proposition down so that it is impossible to tell 
how much he means to have left of it. Then on a following 
page he uses the unqualified proposition again, as though 
it was still in all its original force ; and so continues repeat- 
edly. He treats of education under four aspects : right in 
education, mission in education, authority in education, and 
liberty in education. In each of these aspects he considers 
the subject under three other different aspects, namely, from 
the standpoint of the parent, the church, and the state. 
Thus he has twelve different ways of looking at the sub- 
ject itself, and in each one of these twelve he sometimes 
considers it as if the others were not existing, and yet at 
other times says a certain allowance, which he does not 
state, must always be made for each of the other eleven 
views. Then he turns each one of these twelve views into 
three other views, although he protests he does not : he 
first declares that he is discussing all these views as to a 
state considered only m itself, without making any prac- 
tical application of them ; then he forgets or disregards that. 



THE STATE OF OHIO VS, THE "REV. PATRICK P. QUIGLEY. 401 

and does try to make practical application of them, but 
only as to a state considered in itself ; but at last lie says 
they must all be applied to a state considered in the condi- 
tion of harmonious union with the church, as also in simi- 
lar union with the individual and also in similar union with 
the family ; but as to how this union may be effected, or 
what force each of the four factors shall have in it, he does 
not undertake to say. The one thing that he does continu- 
ally say is that the state has the right to educate ; but if he 
is pressed on that he can point to qualifying expression in- 
inserted here and there in the pamphlet, that this does not 
mean anything more than the right to teach human science,, 
and subject to all other rights, and that therefore he does, 
not mean to educate in the full sense, but only in the quali- 
fied sense claimed by Catholic writers generally ; but the 
defect in his treatment is that he never does undertake to 
define just what rights the state has in education. He as- 
serts various rights of the state in education — right of watch- 
ing over all schools and taking care that there be no offence 
there against order, patriotism, morality, hygiene, etc., etc., 
which all admit, but then he says, in effect, " whoever ad- 
mits that, admits the right of the state to teach" ' That is 
about the sum of the logic of his pamphlet. He says the 
state does establish schools, and appoints teachers and 
prescribes courses of study, and children go to such schools 
and are taught there by teachers appointed by the state ; 
that Catholic writers admit that the state may do that, and 
that all children except Catholic children may attend such 
schools if their parents wish ; that therefore those Catholic 
writers admit that the right of teaching there is in the state 
as well as in the parents. In other words, the only proof 
he shows for his proposition consists of certain admissions 
which he says admit the right of the state to teach, though 
the persons w^ho make those admissions constantly declare 
that the state has.no right to teach children and youth. 

If we could take the final statement of the Professor, as 
given by him in the last paragraph on p. 31, and consider it 



402 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

"m itself,'' we could easily accept it as far as it goes ; but it 
goes to no practical result. It simply tells us what we all 
knew before, that there are four factors in education — the 
individual, the family, the state, and the church. He says 
each one of these factors has its rights and its duties in the 
matter of education, and that each one should do its part. 
We know that the individuals should furnish the money by 
paying the general tax, that the family must furnish the 
children, the church the instruction, and the state the pro- 
tection ; but the Professor does not say that is his view. 

The Professor tells us that these four factors should all 
work in harmony, but he says nothing as to how that har- 
mony is to be obtained, and does nothing to promote it : on 
the contrary, his pamphlet, so far as it may have any effect, 
will have the effect of retarding any harmonious combina- 
tion, because it encourages the only thing that is now making 
any trouble — the indefensible claim of the state that it has 
itself the right to educate. 

The Professor has drawn a great number of conclusions 
in his pamphlet. It seems to us that we might also draw 
the following conclusions from it : 

I. That the state has certain duties to perform in the 
matter of education. " It has no right to establish agnostic 
schools" (p. 15). It must permit the church to teach reli- 
gion and morality, and to supervise all secular instruction, 
even in state schools, to the end that nothing be taught there 
contrary to faith and morals. "Whatever the state does in 
education must be done " in harmonious combination " with 
the church. 

II. That therefore in the matter of education there must 
be a harmonious combination of church and state. 

III. That as the American state recognizes no one par- 
ticular church as the only true church, but regards them all 
3S on an equal plane so far as the state is concerned, the 
state must therefore effect this harmonious combination 
with all churches in the state. 

IV. That such harmonious combination of church and 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 403 

state in education would give us the denominational system 
as in England and Canada, whereby each church would be 
allowed to control its own children and all receive a pro 
rata amount of the public educational fund, as compensa- 
tion for giving that amount of secular instruction which the 
state thinks so necessary for its temporal well-being. 

Y. That in this way there would be recognized the right 
of all parents to hava such schools for their children as the 
parents desire. 

YI. That where there are a number of parents that do 
not desire to patronize church schools the state may enter 
into a harmonious combination with those parents and es- 
tablish for them a purely secular school, to be directed by 
the state, but which school must not he agnostic. 

Whether this is the Professor's meaning or not, he does 
not tell us. He simply assures us that there are four fac- 
tors in education which must be harmoniously combined to 
produce the desired result, and then leaves the matter 
there. 

I will now try to state what I consider to be the Catho- 
lic idea of what the state may do in education. 



404 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 



VII. 

Eights and Duties of the State in Education. 

For those Catholic writers who wrote in Europe at a 
time when the state was Catholic and in union with the 
church, this question required but little consideration. The 
church did most of the work in education. The rich were 
educated in schools supported or endowed mainly by them- 
selves or their ancestors ; the poor, in schools maintained 
from the charities of the church. When the states separated 
from the church, confiscation of church pro]3erty followed, 
and the church being unable to continue its charities, the 
poor became largely a charge on the state. Then began 
the claim of the state to educate — as it is called, to give 
secular instruction only — as it is in fact. And then arose the 
discussion as to what right the state had in education. To 
determine this question it was necessary to begin by getting 
a clear idea as to what was the real office or function of the 
state. Modern Catholic writers have pretty generally 
agreed on the following propositions : 

I. Men exist in this world in various relations. There 
is the married relation, the parental relation, the religious 
relation, the civil relation, the political relation. These 
relations are divinely instituted. Man creates none of them, 
though he may cooperate in concretely establishing them. 
He enters the married relation, acquires the parental rela- 
tion, is received into the religious relation, is born into the 
civil relation, is constituted in the political relation. Men 
considered as in the civil relation are endowed by their 
Creator with certain natural rights. Men considered as in 
the political relation are endowed by their Creator with 
authority to control civil matters subject to natural rights. 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 405 

That authority is called political authority or political 
power, and the political union of the persons in whom it is 
vested is called the political state, or simply the state. 

II. The function or office of the state is twofold : 1. To 
preserve order ; 2. To aid in promoting the general good. 
It is the natural, inherent, essential duty of the state to 
preserve order, and it has an exclusive natural, inherent, 
and essential right to the use of all means necessary to the 
discharge of that duty. As to the second matter, the pro- 
motion of the general good, the authority of the state is 
not exclusive nor essential, but only supplementary. The 
liberty of the individual requires that he be left free to at- 
tain his own good in his own way, as far as possible. The 
state may come in to act for the general good only in 
those cases where individual or private action is insufficient 
to accomplish the work, and the state may then act, not 
against the will of the people, but only in conformity with 
it, and must act only for a good which will be common 
to all. 

III. The education of children belongs of natural right 
to the parents. Education means physical, mental, and 
moral nurture, development, and training. In the education 
of children and youth religious and secular instruction 
must not be separated ; therefore, for religious people, all 
elementary education is a religious function, to be conducted 
by the church or under its control. 

lY. It is the duty of the state to aid the church in its 
work of education, and when private enterprise or private 
resources are inadequate, to provide school buildings, en- 
dow the chairs of instruction or secure support and main- 
tenance for the teachers, and, as far as its resources permit, 
to furnish all needed appliances for teaching. 

Y. It is the duty of the state to protect these institutions 
of learning, to protect the person and the authority of the 
teacher, to preserve order and compel observance of neces- 
sary sanitary regulations, and to prevent treasonable or 
immoral teaching. 



406 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

VI. If it be in a commonwealth where no religion is 
specially professed by the state, but where all religions are 
equally recognized, the civil power must 23ermit each church 
to control the education of its own children, and must extend 
the aid and protection of the state to each church, the same 
as if there were only one. 

VII. A state founded on the natural law must insist on 
that law being recognized in all schools in the state. 

VIII. If there be a number of its people professing no 
special form of religion, and wishing state schools for their 
children in which no special kind of religion shall be taught, 
the state may establish such schools for such children, and 
protect and aid them the same as it does with any other 
school. 

IX. All schools so established are state schools only in 
the sense that they are founded or aided, endowed and pro- 
tected, by the state ; but the state itself has no right to teach 
even human knowledge to children and youth, against the 
will of the parents : the right to determine what shall be 
taught belongs to the parents, and in spiritual matters to 
the church. 

Even as to those schools established by the state for 
children whose parents recognize no church and desire only 
secular*instruction, the teachers therein, as in other schools, 
although appointed and paid by the state, are not state 
functionaries, deriving their authority to teach from the 
state, but are simply agents of the parents, deriving their 
authority to teach there from the parents, — derivation evi- 
denced by the simple fact that the parents send their chil- 
dren there to be taught ; authority revocable — revocation 
evidenced by the simple fact of withdrawing the children 
from those schools. 

X. It is the duty of every parent to give his child proper 
instruction, religious and secular. To fail to do so as to 
religious instruction is a deprivation of right to the child ; 
to fail to do so as to secular instruction may be a crime 
against society. The state may aid in the enforcement of 



THE STATE OF OHIO VS. THE REV. PATRICK F QUIGLEY. 407 

the right, and as to the deprivation of secular instruction 
may in some cases punish the crime ; but it may not intrude 
itself into the family for the latter purpose until the crime 
has become of public moment, like any other crime com- 
mitted directly against an individual, and indirectly against 
the commonwealth. 

XL When the state finds it necessary to inquire into t/ 
such case, it must do it judicially, as with other crimes ; and 
may, on such inquiry, determine asbetween that particular 
parent and that particular child, and under the particular 
circumstances of the case, what would be a proper minimum 
of secular instruction in that case, and may insist on such 
minimum being given in that particular case. 

XII. If the father cannot or will not give the needed 
instruction so ordered, and if there be no relative or religious 
association of the religion of the father willing to take 
charge of such child, the state must then take charge of it 
and do the best it can to provide it with the instruction the 
father should have given it. 

XIII. The state may not fix any general minimum 
standard of secular instruction in any event, nor compel 
any attendance at any particular state school except at the 
request of the parents. 

XIY. The state may by general tax provide a fund to 
be used in aid of education, but, being only the trustee of 
that fund, may disburse it in aid of education, only in such 
way as may benefit as equally as possible all the people of 
the state, favoring no one school or set of schools more 
than another. 

XV. Having the right to act in education only in aid of 
the parents, the state may not use public funds to establish 
new schools, if schools sufficient for the purposes of educa- 
tion are already established. 

XYI. The state may establish such naval, military, 
scientific, and literary schools as it finds necessary for its 
own legitimate ends, and may direct the secular instruction 
in such schools so far as necessary for those same ends ; 



408 THE STATE OF OHIO VS. THE KEY, PATEICK F. QUIGLEY, 

but is bound to permit notliiug in tliat secular instruction 
contrary to the religion of any of the pupils, and is further 
bound to do all in its power to secure for those pupils such 
religious teaching there as those pupils desire. 

XYII. All Catholics must claim that it is a matter of 
conscience with them that secular instruction for children 
and youth may not be given except in union with religious 
instruction, and in schools in which all of the teaching is 
conducted in harmony with the requirements of the church. 

Before proceeding to cite authorities in connection with 
the foregoing propositions I wish to make some comments 
on some of them. 

As to the first, that men do not constitute the married 
relation, but only enter into it, see my argument in the Cir- 
cuit Court, p. 11. Men are not born into the church ; con- 
sidered simply as born, they are unbaptized persons,, re- 
gardless of age. By baptism they are received into the 
church. Civil rights are distinct from political rights, as 
witness the celebrated Civil Eights Bill, protecting the right 
to ride in public conveyances, to enter public places of re- 
freshment, amusement, etc. The right to own property, 
to dispose of it by will, to make contracts, to sue and be 
sued in the courts, to engage in trade, the professions, 
etc., are civil rights. Civil rights are possessed by men, 
women, and children who are citizens, and to a great extent 
by residents who are not citizens ; but generally only 
adult male citizens have the right of voting and holding 
office. The right to vote and to be voted for is a political 
right, because it gives to the holder a voice in the politics 
or government of the country. 

When there is a political union of persons having politi- 
cal rights, there is already there a political state, although 
a formal written constitution be not yet adopted. England 
has not yet adopted a formal written constitution, and most 
likely never will. The true political constitution of any 
people is the unwritten constitution, back of the formal 
written one. The written one is only an attempt to express 



THE STATE OF OHIO VS. THE REV, PATRICK F. QUIGLEY. 409 

their understanding of wliat their real political constitution 
is — the way they were providentially constituted a state. 
The success of any formal written constitution depends on 
how far it is in harmony with the providential constitution, 
or what is sometimes spoken of as the genius of the people. 

As to the third proposition, defining education. Non- 
Catholic Americans are beginning to understand this ; and 
as usual in the midst of error, it is the highest intellects 
that first catch the light of coming truth, as the highest 
peaks first feel the light of coming day. In the first number of 
the new monthly, " School and College " (Ginn & Co., N. Y., 
January 1892), President Andrews of Brown University, 
in the leading article, " Some of the next steps forward in 
Education," says: " Foremost among the items of educational 
progress to which attention is invited is a new conception of 
the nature and ends of education. . . . Speaking succinctly, 
the constituents of a sound education are, first, charac- 
ter ; second, culture ; third, critical power. . . . We see 
here that mere knowledge is left out of the account. It is 
quite incidental and relatively insignificant. Yet this is what 
most people have been wont to regard as the sum and sub- 
stance of education. . . . The definition makes character 
part of education, and even gives it the first place. All' 
reflecting persons are coming to feel that unless schooling 
makes pupils morally better, purer within, and sweeter, 
kinder, stronger in outward conduct, it is unworthy the 
name.'' (Italics mine.) 

Of course it makes Catholics smile to hear of this " new 
conception" among distinguished non- Catholic educators : 
a smile, first, of surprise that it should have been delayed 
with them so long ; second, of satisfaction that it has come 
at last. 

As to the proposition that the state may compel a negli- 
gent parent to give his child a proper amount of secular 
instruction : Compulsory education in special instances 
and general compulsory attendance at certain schools are 
very diiferent things. The state may exercise compulsion 



410 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

as to secular instruction in particular cases. It is not true 
that every child has a right to what is generally spoken of 
as a minimum amount of secular instruction. The amount 
that any particular child has a right to get depends on a 
variety of circumstances' — the capacity of the child to re- 
ceive, the ability of the parent to give, the station in life 
of the parties, and the condition of the people of the coun- 
try in general in regard to education. All that being de- 
termined, it must be remembered that this right of the 
child is not one for which it may sue in the courts as a 
strict legal right. 

It is only a moral right — one as to which the parent is 
bound in conscience. We may call it -an equitable but 
imperfect right. We derive our administration of justice 
from the old English system. In the days when this 
system was formed in England the state there was Catho- 
lic, and was in union with the church. They had there 
conscience courts. Those courts were presided over by 
prelates of the church. When a man had a right for which 
there was no remedy at law he went to this church prelate 
and demanded to know whether, in conscience, his oppo- 
nent was not bound to give the relief demanded. And to 
,this day the language of those courts is that the defendant's 
conscience is or is not bound, as the case may be. When 
the church court decided in favor of the petitioner, the 
civil power, as the secular arm, compelled, if necessary, 
the execution of the judgment. There were other church 
courts for cases concerning marriage, divorce, guardian- 
ship of children, probate of wills, and administration of 
estates of deceased persons, called the court of the ordi- 
nary or bishop of the diocese. While the rights of the 
Catholic Church were generally recognized in England, 
these courts were sometimes purely, always practically, 
ecclesiastical courts, and the prelates sitting there as 
judges proceeded, not according to the course of the com- 
mon law, but generally according to the course of ecclesi- 
astical procedure, or canon law, borrowing, when they 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 411 

borrowed at all, not from the common law of England, l^ut 
from the civil law of the Continent. When the state in 
England began to absorb the powers of the church, laymen 
began to be appointed judges of these courts, and more or 
less of a civil hue was given them ; but the equity court is 
still the court of conscience, and it is only through the con- 
tinuing influence of the church on society, through the 
policy established by the church as the policy of those 
courts, that the state is able to hold society together to-day. 
How long would people be protected from secret fraud in 
these days were it not for the conscience-searching power 
of the equity court ? Our state has inherited all of those 
courts. It is true that the people are not in the same 
touch with the judges of those courts now as in the ancient 
times, when the defendant, recognizing the awful power of 
the church, realized that his conscience was not only judi- 
cially but actually bound by the decision ; still, we are able 
in most cases to compel him to perform his moral obliga- 
tion. It is through the power of those courts alone that 
the state is able now to properly compel a parent to fulfil 
the moral obligation he is under to give his child a proper 
amount of secular instruction. 

Possibly it was because of not understanding this that 
Prof. Bouquillon fell into the error of saying, on p. 26 of 
his pamphlet, " If then you grant to the state power over 
cases of neglect, you at once give it power to define what is 
the minimum of education, and to exact that minimum by 
way of prevention and of general precept.'' I suppose the 
Professor uses " prevention" here as a Galilean, for the 
French prevention, giving notice, warning. 

Giving the state power to determine what should be the 
minimum in a particular case does not by any means au- 
thorize it to make that minimum of general precept, applica- 
ble to all cases. The state will punish a parent for starving 
his child, and order the child to have sufficient food, but 
does that fix the diet for all children in the land ? The 
state will determine whether a father has exceeded proper 



412 THE STATE OF OHIO VS, THE EEV. PATRICK F. QUIGLEY. 

castigation of an offending child, considering what was 
due to it under the circumstances. Will that fix the 
amount proper for all children, regardless of sex, age, 
physical health, strength, or particular needs ? The state 
will determine what is a mimimum of necessary support or 
allowance a husband must give his wife, under certain cir- 
cumstances. Must that be the minimum for all wives 
under all circumstances ? No uniform standard of instruc- 
tion will secure the rights of all children. If high enough 
for the highest, it will be oppressive, ruinous, tyrannical, 
and impossible for the great majority. If low enough for 
the lowest, it would afford no means of compelling the 
great majority of parents to do their duty, if they did not 
care to do so. To try to strike a general average in educa- 
tion would be more outrageous than to try to strike a general 
average in taxation. The demand of the state for each of 
these must be only wdiat is proper in each particular case. 

And now as to authorities. There have been so many 
authorities already cited here to the effect that the state 
has the right to bring a pressure to bear on neglectful 
parents, that I do not need to cite any more to prove that 
proposition. I will cite a few, merely to show that ap- 
proved Catholic writers agree to that doctrine, but support 
the view I have stated, that no general standard may be 
fixed. 

Costa-Eosetti, a learned Jesuit writer, says : "Accord- 
ing to natural law, parents cannot in justice be directly 
(per se) forced to send their children to an elementary 
school ; this, however, may be done indirectly {per accidens) 
in particular cases." What these particular cases are, he 
explains as follows : 

" If it is shown that children are so treated by their 
parents that they must needs become miserable unless 
they are relieved from their parents' control, the civil au- 
thority, in virtue of its function of protecting the rights of 
its citizens, can and must provide for their education accord- 
ing to the exigencies of the case, or the state may remove 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 113 

such children from parental control, or force the parents 
to send them to school." (Costa-Kosetti, Philos. Mor. ; 
Innspruck, Ranch, 1886, vol. iii. pp. 736-744.) 

Prof. Eickaby, S. J., Stonyhurst : " It is certainly 
within the province of the state to prevent any parent from 
launching upon the world a brood of young barbarians 
ready to disturb the peace of civil society." He adds, that 
where ignorance is a great disadvantage, " the parent is not 
allowed to let his child grow up ignorant. Then if he 
neglect to have him taught, the state may step in with com- 
pulsory schooling." But he adds: " Compulsory schooling, 
for all, indiscriminately y and that up to a high standard, is 
quite another matter." (Eickaby, Mor. Ph., pp. 358, 359.) 
(Italics mine.) 

Cathrein, Yon Hammerstein, and Jansen, cited by me in 
the Circuit Court, all admit that where the parents fail, 
neglect, or refuse to give to their children proper secular 
instruction, the state may bring its power to bear on them 
to compel them to perform this duty; but, like Prof. Eickaby, 
they all distinguish between compelling parents to give a 
proper amount of secular instruction to their children and 
compelling parents tc send their children to state schools 
to be educated there. The right of the state to the former 
they admit, but any right to the latter they deny. If the 
state insist that for the safety of the state it must take a 
child away from a Catholic parent to have it educated, it 
must send it to a Catholic school and pay for its instruction 
there, if its parent so desire. It must do this or let it alone. 
It may insist on the child being educated, but it has no 
right to control the kind of education the child shall re- 
ceive. 

What is proper in any particular case must be left for 
determination to those courts which have the care of 
orphaned, neglected, oppressed, or abandoned children. 
The Legislature may by general laws enlarge and define the 
power of those courts in regard to this new question of 
compulsory elementary education ; but it must follow the 



414 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLET. 

principles of our system of government, the cliief of whicli 
is that individual liberty must be protected, and never de- 
nied in any particular case except after the usual particular 
judicial inquiry and after the facts in the case are judicially 
ascertained and established. That done, justice may be 
administered in accordance with the general law and the 
facts of that particular case, but always saving and respect- 
ing the rights of the parent and the church to designate 
what kind of education the child shall receive. It is only 
in the case of an utter waif, where there is neither parent, 
relative, church, nor association to claim or receive the 
child, that the state may send it to a state institution. 

The Catholic Church not only is not opposed to compuls- 
ory education, but it has always and everywhere demanded 
it, and necessarily so, for there is no teaching body that more 
exalts the dignity of man. She claims for him an immortal 
nature, therefore an immortal destiny, therefore the need 
of instruction and education to qualify him for it ; but she 
acts on the principle of giving to each what is due to each, 
and to the time what belongs to the time. When she be- 
gan civilizing the barbarians of Europe she gave them all 
they had capacity to receive. Leading civilization to-day, 
she gives to it all it has the capacity to receive, and insists 
that each shall receive according to his merit. But while 
she so exalts the dignity of the individual she necessarily 
respects his liberty. She holds that man is good only in 
so far as he is free, but that in the proper sense he may be 
free only in so far as he is good ; therefore she permits and 
demands compulsion as to education, but only such as is 
just in each particular case, with all the circumstances of 
that case judicially considered. In that she is in harmony 
with American principles, with English practice, with com- 
mon-law traditions. 

But this law of compulsory attendance, which seizes on 
all children in the land of a certain age, whips them all 
into line, and with the aid of unnumbered truant officers 
drives them in bands to certain public buildings, there to 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 415 

swallow tlie regulation " black broth " of public secular 
instruction, is not American, nor English, nor Christian, 
nor free : it is Continental militarism, Caesarism, despotism. 
Governor Pattison of Pennsylvania understood that 
general compulsory attendance was not the American idea 
when, in June 1891, he sent a similar bill back to the Legis- 
lature there, and, not denying that special compulsion 
might be applied in special cases, declared to them that 
"FEEE ATTENDANCE UPON FEEE SCHOOLS 
SEEMS TO MOST BEFIT A FEEE PEOPLE." (Vetoes. 
etc., as before cited, pp. 92-95.) 



416 THE STATE OF OHIO VS. THE KEV. PATRICK F. QUIGLEY. 



VIII. 

Ik 
Conclusion. 

The question to be decided here brings ns face to face 
with the two great theories which from time immemorial 
have divided the world, — whether man is in this world as 
master or only as a tenant at will ; whether the state is 
supreme or only an agent with limited powers. The latent 
desire of independence in man is coeval with his creation. 
The great tempter, with superhuman comprehension, went 
straight to the weakest point of human nature in his very 
first attack. Eat of this, he said, and you shall be as other 
gods. From the beginning the great human contention 
has been that this world belongs to man, and that he shall 
be the sole ruler of it. We find the record of this conten- 
tion running through all we have of sacred history. The 
great Plato, honest probably, erring certainly, proclaimed 
the absolute supremacy of the state. Aristotle, of the 
house of the reader, read his books to the same effect. 
Lycurgus framed his laws on that theory. Until Christ 
the Saviour came, all nations save one had yielded to the 
great temptation. With the coming of Christianity truth 
entered again into the hearts of men, and with such pre- 
vailing force that for nearly fifteen hundred years the civil- 
ized world again recognized the providence, the majesty, 
the supremacy of God. Then came Machiavelli, who, 
with three words only, in his book " The Prince," revived 
all of the ancient temptation. Those three words were 
simply these : " as necessity demands." The ruler, he says 
(I quote from memory only, not having the work at hand), — 
the ruler in governing his state may follow accepted stand* 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLET, 417 

ards of morality or not, secondo la necessitd, — " as necessity 

demands." 

This made of the ruler again a god, supreme over all 
questions of right or wrong. As in the beginning, men 
yielded again to temptation. Erastus echoed the cry in 
S-witzerland, De Groot took it up in Holland, Hobbes re- 
peated it in England, Eousseau revived it in France, each 
one adding something to it ; but it was reserved for German 
logic to carry it to its last, blasphemous culmination. 
'' The state is its own end ; has no end outside itself. . . , 
It is the immediate and invisible of the absolute life." * 
*' It is the absolute, unmovable self-purpose." ' " The 
national state is infinite in itself."'' "It is the universal 
substance into which all individuals must coalesce." * 
"The state must be revered as the Divine on earth."* 
" The state is the ' present God,' in regard to whom man has 
no rights, only duties." " 

After such teachings in Germany we do not wonder 
that the Prussian monarch insolently wrote the other 
day in the "Golden book" of Munich, "The will of 
the king is the only law ; " but what does surprise us 
is to hear the Prussian compulsory education law cited 
to us as justification for a similar outrage here. Our 
state is not founded on the principles of Prussian philoso- 
phers. Our liberties are based upon the principles enun- 
ciated in our Declaration of Independence. We did not 
assert that " the state is the present God ; " that " man has 
no rights as against the state ; " but, that man is a created 
being, having certain inalienable rights with which he is 
endowed by his Creator, and that he it is who forms the 



^ Schilling, complete works, part i. vol. v. p. 316. 
2 Hegel, "Grundl. der Philos. des Reclits ; " complete works, vol. viii. 
§258. 

2 my. §370. 

* Hegel, Encyc. § 537. 

* Hegel, ^r^i ref. 

« Hegel, Encyc. § 537» 



418 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

state and gives it life, and does this by a right which he 
gets from nature and from nature's God. The founders of 
our republic rejected the pagan idea, and reasserted 
the Christian doctrine. ' But the germs of paganism per- 
meate the human organism continually, and are forever 
struggling to control it. We are in the fourth century of 
our civil life in this country, and we were as old as the 
world when we came, bringing with us all the principles of 
truth and all the pretended principles of error that the 
world had yet known. The principles of paganism have 
been propagated here side by side with the principles of 
truth. Those principles have been publicly preached, each 
by its own apostles, freely in this free country, Avithout 
actual civil conflict, until now ; but now the issue has been 
raised ; now each of these parties is before the court, each 
demanding judgment. 

One party claims that the state is supreme in all mat- 
ters of human legislation ; that, as Donisthorpe says in 
the " Plea for Liberty," " the first thing we must do is to 
clear our minds of all this cant about natural rights ;" 
that there is no such thing as a natural right ; that there 
are only civil rights ; that there is no human right until 
after states have been organized and such rights granted 
to the individual by the state ; that all rights proceed from 
the state, because all rights proceed from the people, and 
the people are the state. 

Now there are thousands and hundreds of thousands of 
people in this country who take most of that to be true, 
because it is put in a form of words to which they have 
been accustomed, and which they have been in the habit 
of receiving without critical examination, and therefore of 
accepting as a correct statement of their political belief. 
But the moment you put the same idea into other words, 
as the Germans have done, they reject it. But those who so 
reject are only the uncritical followers of the new apostles : 
the apostles themselves know very well that the two modes 
of expression mean the same thing, — the absolute suprem- 



THE STATE OF OHIO VS, THE KEY. PATRICK F. QUIGLEY. 419 

acy of the state ; tlierefore, that the state is the present God, 
— meaning by present God merely the supreme ruler for the 
present time. Whether there be any other ruler for any 
subsequent time or not, they say, is not a question perti- 
nent to this discussion. That is the position occupied here 
by counsel for the state. That is the position taken by 
the judge of the court of first instance below, — that there 
was no remedy for us in the courts ; that the Legislature, 
as present God, having passed the law, the only thing for us 
to do was to obey it,- — that if we thought it unjust w^e 
might try to repeal it, but that so long as it stood un- 
repealed we must obey it. A fine doctrine for the minority 
in a free country ! 

Opposed to all that is the doctrine of the other school, 
which asserts that all rights come from the Creator of all 
things ; that the state is merely an agent instituted, in its 
essence, by the same Divine authority for the sole purpose 
of protecting and regulating those rights ; that as the fam- 
ily is a state of human relation, divinely instituted, into 
which human beings enter when they so desire, but which 
they do not themselves create, but only concretely estab- 
lish, so the civil state is merely a state of human relation, 
divinely instituted, into which men are constituted, but 
which they do not themselves create, but only cooperate 
in concretely establishing ; therefore, that civil authority 
is not only divinely instituted, but its scope is also divinely 
limited, and limited to the purposes for which that author- 
ity was instituted ; that though men may form, unform, and 
re-form the concrete constitution of their state, may expand, 
contract, and re-expand it, there is alwavs a limit beyond 
which they cannot go, and that limit is the pre-existing, in- 
violable natural rights of man. The civil state having been 
instituted solely to protect those rights, may never venture 
to encroach upon or abolish them. A law which seeks to 
do so, is not indeed a law, but only a corruption of law, and 
not entitled to obedience ; and the remedy against such 
enactment is not a struggle for its repeal, but a resort to 



420 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

the courts, chief guardians of human rights, whose duty it 
is to declare the absolute nullity of all such attempted en- 
croachments. 

These two theories lead out to the future in different 
directions. We have come to the parting of the roads, and 
it is now for this court to decide which our people must 
follow. 

As the court decides this case, so will the state of Ohio 
be committed to the Machiavellian doctrine of complete 
popular supremacy in all things, without even a consti- 
tional limitation, for the majority which ^adopts may also 
abolish ; or it will stand based on the natural law, founda- 
tion of all human rights, recognizing that there are per- 
sonal rights which even the power of the state may not 
touch. The responsibility of this court is great. It is 
passing not only on the rights of the four million people 
now in the state of Ohio, but, practically, on the rights of 
all the millions yet to be in this whole country, because of 
the custom we have of following the first precedent estab- 
lished. This court cannot think of passing upon this ques- 
tion merely in accordance with what may be claimed to be 
the prevailing sentiment, here, there, or anywhere. It must 
and will go back to the elemental principles upon which 
society is based, and determine where the natural law draws 
the line between the liberty of the individual and the sov- 
ereignty of the state, saying to the individual. So far mayst 
thou go in peace and safety ; to the state, Thus far mayst 
thou come, but no further. 

If the state may ^x the term of private schools, the 
course of studies, the standard of excellence, it may also 
fix the qualifications of teachers and forbid religious teach- 
ing there, — thus thwarting the primary object of the 
private school, thus practically forbidding parents to have 
private schools. Will this court say that whatever element 
happens to be in the majority in any state may dictate the 
kind of education the minority shall receive ? Will it say 
that a majority in Wisconsin may, if it likes, close all 



THE STATE OP OHIO VS, THE KEV, PATRICK F. QUIGLEY. 421 

schools in that state in which the instruction given is not 
such as that majority may choose to order ? This doctrin-e 
is dangerous. 

The old Ferrara blades bore the legend, " My force is 
that of the hand that holds me." Shall that be the motto 
on our sword of state ? A judge of this court warned us 
against the danger of trying to decide in accordance with 
the spirit of the constitution against its letter, and he was 
right ; but what is needed is to recognize the spirit as illu- 
minating and animating the letter. A body without the 
spirit is dead. The letter is the body of the law, yet the 
courts all say that in construing a statute we must consider 
the intent of the author, and that intent is what we mean 
when we speak of the spirit of the law. The intent of the 
framers of the Ohio constitution was to acknowledge that 
man has certain natural rights inherent and inalienable. 
That recognition was the outcome of two hundred years of 
such individual liberty in our colonial life as had not been 
known before since the world was young. It will be dan- 
gerous to send all that result back to a people already be- 
ginning to feel the poison of modern socialism burning in 
their veins. There are leaders already declaring that we 
must get rid of all this cant about natural rights ; that there 
are no rights except such as are made by law, and no law 
except such as is made by majority vote. This pourt has 
in its keeping, coming down to it from the fathers of the 
republic, a constitution which declares that men have in- 
herent and inalienable natural rights to life, liberty, con- 
science, and property. Will this court consent that that 
constitution shall be trampled under foot, and the lives, 
liberties, consciences, and properties of the people of Ohio 
be left to the will of the new majority. Shall we profit 
nothing by the victories of our ancestors ? 

Is there no unchangeable law in this matter ? Is there 
no restriction on the will of the majority ? Are there no 
reserved rights ? If not, let the anarchists take courage. 
Their day of triumph cannot be long delayed. Also, let 



422 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

those of US who are wise hasten to join them in self-de- 
fence that we may have our share of the plunder. Con- 
science ? There is no conscience. Law ? There is no 
law. Justice ? There is no justice. All these things are 
fictions of the past. The new era has come. The will of 
the majority is the only law. The state is supreme, and 
the majority is the state. 

Let no one say this language is intemperate, uncalled 
for, unjustifiable ; that no one thinks of disregarding per- 
sonal and property rights in this country. Not so ! There 
is no right more sacred than the right of the father to con- 
trol the education of his child. When that right is taken 
away, nothing that is left is of any value. 



JUDGE DUl^NE'S ARGUMENT.— CoNTmuED. 

Iln tbe Supreme Court of tbe State of ®Mo* 

SUPPLEMENTAL. 

May it please the Couet : Since the foregoing argument 
in this court was in type, some further literature has ap- 
peared in relation to the questions I have been discussing. 

I wish to call attention, first, to an English translation 
of the article in the Civiltd Cattolica^ reviewing Professor 
Bouquillon's pamphlet on education. The Professor in his 
Bejoinder to Critics cites the Civilta as a Catholic authority 
sufficient to settle the orthodoxy of any Catholic writer ; and 
such indeed is the general acceptation. It is a periodical 
of the highest order, published in Eome, and universally 
regarded as a semi-official organ of the Yatican. In August 
last it reviewed and praised a work of Professor Bou- 
quillon on Moral Theology, and the Professor now cites 
that indorsement as sufficient proof of the orthodoxy of his 
pamphlet on education. But alas for the Professor ! The 
Civilta has seen and read his pamphlet on education, and 
in the number for January 2, 1892, discourses as follows : 

It says of the Professor, that " he is very faulty in grant- 
ing to the state rights that do not belong to it." It then 
denies that the state may make use of all legitimate tem- 
poral means that conduce to its welfare, and illustrates 
that the propagation of children is a legitimate and temporal 
means for the welfare of the state ; and it asks : " Shall 
the state then have the right of making this propagation 
of children obligatory, and of imposing it by law on all of 
its subjects ?" Says it is not admitted that compulsory in- 
struction is a temporal means, much less that it is a neces- 

433 



424 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 

sary means for reaching tlie end of civil society, and that it 
cannot be proved that it is so ; says it is not necessary that 
all citizens have a certain amount of secular instruction ; 
says that when Catholic authors say the state may coerce 
parents who neglect the education of their children, they 
mean only moral education, which is the only education 
children have a strict right to receive. Speaking of Prof, 
Bouquillon's declaration that he cannot see why, if a state 
can hinder parents from sending their children to labor 
above the strength of their age in the mines, it may not 
also force their parents to give them a minimum of instruc- 
tion, the Civilta says " That the author does not see a dif- 
ference so elementary, is certainly a phenomenon which 
will astonish not a few. From the fact that the state can 
hinder its subjects from doing that which is intrinsically 
ivrong (as would be, for instance, the violation of a strict 
right on the part of the children to the preservation of their 
lives), it does not follow that the state has the right to force 
its citizens to do any and every kind of good, even toward 
those who have no strict right to such a deed of benefi- 
cence." The Civilta says the right in this matter is cor- 
rectly defined by the learned S. Schifiini, Professor in the 
Gregorian University at Rome, in his recent work on Moral 
Philosophy, thus: "Excepting that education which is 
moral and religious, and which parents must provide under 
the direction, not of the political but of the ecclesiastical 
authority, instruction in the arts and sciences, which is 
usually given in schools, cannot be a burden to be under- 
taken, of necessity, by all. For those arts and sciences are 
in the order of goods which appertain indeed to the proper 
perfection of the general community taken as a whole, but 
do not and cannot appertain to the proper perfection of 
single citizens. . . . Now goods of this kind, as we have 
noted elsewhere, with St. Thomas, cannot be enjoined upon 
any one indiscriminately by way of a command ; yet they 
are secured in civil society through the particular taste of 
different individuals, and Divine Providence, which governs 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY, 425 

all things, adds its impulse in the same direction." (Disp. 
Philos. Moral, v. ii., § 517 ; Turin, 1891.) 

The Giviltd warns its readers that the doctrines which 
Prof. Bouquillon proposes concerning compulsory education 
are not sanctioned by St. Thomas, as the Professor claims ; 
and as to Mgr. Sauve and Cardinals Zigliara and Manning, 
the Civilta says, " No one of them holds the opinion of the 
Professor ;" that Mgr. Sauve " therefore is simply neutral," 
and neither affirms nor denies ; that Zigliara denies it with 
vehemence. As to Cardinal Manning's utterance in his Pas- 
toral of 1872, the Giviltd says it is not at .hand, and there- 
fore they cannot speak of it. (I have an extract from it, 
however, which I will give in a moment.) Then the Civilta 
adds : '* The author is mistaken in insinuating or supposing 
that the doctrine defended by him against the Giviltd 
Gatholica under the head of compulsory education, and in 
general on the right of educating, which he grants to the 
state and every individual, is * the true doctrine of the 
church.' " This is rather severe from the authority invoked 
by the Professor himself; but then follows the unkindest 
cut of all in the words already cited, that they have doubted 
whether this pamphlet is really genuine, whether it real- 
ly proceeded from the author whose work on Moral The- 
ology they praised in August last. 

Professor Bouquillon in his original pamphlet, p. 27, 
cites Cardinal Manning in a way to make the ordinary 
reader believe he upholds the Professor's theory of the 
right of the state to educate and to compel education. 

The Professor also says on p. 37 of his Eejoinder, that 
the state received its mission to teach from God, when God 
created man a social being, just as the parents received 
their mission to be the educators of their children. 

. I will give now an extract from Cardinal Manning's Pas- 
toral of 1872, cited by the Professor and in addition to the 
general answer there will be found a special answer to the 
claim that the state has a natural right to educate, which I 



426 THE STATE OF OHIO VS. THE KEV. PATKICK F. QUIGLEY. 

will take the liberty of underlining to call particular atten- 
tion to it. The following is the Cardinal's language : 

" The heathen state did not venture to claim a right 
"» ' y^ superior to the parent. It has been reserved for (so-called) 
Christian states to set up the monstrous claim of educating 
the children of the people according to its own doctrines 
and opinions. The education of France for the last seventy 
years is an example of the exorbitant pretension of the 
civil power. And the state of France at this time is a com- 
mentary on the peril of violating the rights of nature and 
the liberty of parents. Nature avenges itself with a 
terrible directness of recoil. The education by Ministers 
of Public Instruction, through teachers without faith and in 
schools separated from the church, has done its work with 
a completeness which renders all further demonstration of 
its odious and perilous character needless. And yet it is 
to this that some men would invite us to descend. . . . 
Every Christian child has a right in himself to a Christian 
education ; every Christian parent is the guardian of that 
right in his child. And over the Christian parent is the 
authority of the church, as the guardian of the rights, and 
the guide of the liberty, both of the parent and of the child. 
The education of Christian children in faith and morals — 
and nothing less than such formation is worthy of the name 
of education — belongs directly and by divine right to the 
authority which in faith and morals is both the ultimate 
judge and the supreme guide. These principles are to you 
as axioms both of the natural and the Christian law. You 
need not therefore be told that iJie civil poiver has received 
no rightf either by the laiv of nature or of Christianity , to as- 
sume to itself the formation or education of the people. A 
worse tyranny could not be imagined. A people educated 
by a government without faith — and what government pre- 
tends to have a faith ? — a people formed to the image and 
likeness of an atheistic commune or a Voltairean civil 
power, can only grow up to scourge itself with intestine 
feuds, and to commit suicide as a nation. . . . But the 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 427 

state, even if it had the right, has no power for such an 
enterprise. It has jurisdiction over the body, but none 
over the soul. It can control the outward actions of men ; 
it cannot reach the inward thought or will. But this is too 
plain to need words." (Extract from Pastoral, 1872.) And 
the Professor cited this very pastoral as an authority ! 

The learned Dr. Chatard, Bishop of Yincennes, Indiana, 
in the Ecclesiastical Bevieio (Gallagher & Co., Phil., 
February 1892), says of the utterance in question : " The 
pamphlet of Professor Bouquillon of the Catholic Univer- 
sity of Washington is the bugle-note that the battle is on and 
the combatants prepared. He wrote because he was told 
to write ; (and) ... as was to have been expected, (he) has 
treated the question with much learning and research ; (but) 
. . . there appears to us to be a certain amount of mist that 
obscures quick perception of delicate points. For instance, 
there is a looseness in his manner of reasoning which im- 
presses us that he writes under the imperious influence of 
the eidolon in his mind, apart from the desire of those over 
him. As a general rule, French ecclesiastics — and no one 
loves them better than ourselves — labor under the influence 
of the cultus gubernii. '■ Le gouvernement ' has a great claim 
on their regard. . . . This, taken with the power of Jansen- 
ism and Gallicanism, has brought about a habit of thought 
which is at variance with the cordially received definitions 
of the Vatican Council, though we willingly grant not 
maliciously. It is rather the unconscious form of thought 
begotten of habit, — a form which leads to a kind of worship 
of the state. " 

Considering the Professor's famous syllogism, the 
bishop says the major is too sweeping ; that he would be 
inclined to modify the minor, and that the conclusion is too 
broad. " Some things of this kind," he says, " have struck 
us in reading this pamphlet, and they serve to obscure the 
issues and mislead. . . . The American public school main- 
tained by the state is the non-sectarian school which 
Catholics cannot in conscience accept. . . . Individual 



428 THE STATE OF OHIO VS. THE KEY. PATBICK F. QUIGLEY. 

rights are sacred things. As an American, the members of 
whose family have fought the battles of the country for 
three generations before him, beginning with the Bevolu- 
tionary War, we are intensely attached to the maintenance 
of the people's rights, and it is, moreover. Catholic teaching 
that it is the duty of the state to respect them. Eternal 
vigilance is the price of liberty ; and the American people 
should recognize and stand by the principle, that a wrong 
done to one curtailing liberty, is a wrong done to all, tend- 
ing fatally to eventual loss of liberty, to the absorption of 
all right by a powerful centralizing state. . . . The pam- 
phlet of Professor Bouquillon has been replied to by F. 
Holaind, S. J., in a solid and able manner. This is not our 
opinion only : it is that of able men. And we make this 
remark because a slur has been cast on his work. We do 
not think we violate confidence when we state that Kev. F. 
Holaind did not especially represent the great order of the 
Jesuits, as has been remarked, but that he did represent 
others outside of it, who are grateful to him for the priij-. 
ciples he defends, which are the basis of just and stable 
government." {Am. Ecc. Bev., 1. c.) 

Professor Messmer of the Catholic University at Wash- 
ington, now Bishop elect of Green Bay, Wisconsin, has an 
article in the February number of the same Ecclesiastical 
-Bem'eit; on this question. He makes the point that attend- 
ance of a child at any primary school is education for that 
child, whether it be good or bad. " We repeat, elementary 
school instruction is necessarily education, either good or 
bad ; there is no medium, and the instructor who teaches in 
those schools, without providing at the same time the 
proper education, forfeits his right and authority to teach, 
because his instruction, which is necessarily defective and 
partial, becomes injurious to the young heart. This is a 
question of principle with Catholics. It is the reason why 
the church has condemned in principle any elementary 
school system among Christians which discards Christian 
education, as P. Holaind clearly shows." 



THE STATE OF OHIO' VS. THE REV. PATRICK F. QUIGLEY. 439 

Contiiming, he says : " That primary schools, inasmuch 
as they supply the place of the family, must make it their 
object to impart education, not merely instruction, is beauti- 
fully set forth in the pastoral letter of the Belgian Episco- 
pate, December 7, 1878." They say: " The voice of religion 
is one with the voice of nature in proclaiming that the edu- 
cation of children belongs not to the state but to the parents, 
and that it is for them at once a right and a duty. The 
teacher is simply the representative of the father ; he is a 
delegate charged by the latter to advance and finish the 
noble task of educating his children, and to fulfil the task 
he ought to instruct and bring them up in such a manner 
that they may find the training at school a supplement of 
home training. . . . Can it be denied that the education of 
the family must be based on religion, and that the first 
desire of the father who intrusts his child to a school is to 
see it receive not only solid instruction, but rather an edu- 
cation which will render his child docile, respectful. God- 
fearing — in a word, to obtain for it a religious education ? 
To open, at the cost of the public treasury, schools from 
which religious teaching and religious influence are ban- 
ished, in order to instruct the children only in the elements 
of letters and profane sciences, is nothing else than to use 
the money of the parents to pay for an education which 
their hearts and their consciences must equally condemn." 

Professor Messmer rejects Professor Bouquillon's views 
of state control over parochial schools and general compul- 
sory instruction in secular knowledge up to any general 
minimum standard, but admits the same kind of a right in 
the state to teach as stated in one place by Prof. Bouquil- 
lon, — that is to say, a right to open a school and appoint 
agents who may teach those who choose to come there and 
receive that teaching, provided proper religious instruction 
be also given there ; but, as we have seen, that is not really 
a right to teach, but simply a right to act as agent for the 
parents when the parents so desire. 

Professor Bouquillon has himself made a further con- 



430 THE STATE OF OHIO VS, THE REV, PATRICK F. QUIGLEY. 

tribution to this literature in the way of a pamphlet of forty- 
two pages entitled "A Ee joinder to Critics." 

An examination of that Eejoinder shows that in my ef- 
fort to be just to the Professor I became over-generous. I 
called attention to the fact that while he started out with 
the broad proposition that " the state has the right to edu- 
cate,'' he afterwards seemed to modify that declaration by 
the use of language which might justify him in claiming 
that he meant to assert only that the state had the right to 
teach human knowledge, which, as even President Andrews 
of Brown University admits, is quite a different and rela- 
tively insignificant thing compared with the act of really 
educating ; but Professor Bouquillon takes up this matter 
on page 14 of his Rejoinder as follows : 

" IV. I am blamed for confusing Teaching with Educa- 
tion, and urging in favor of the right to educate arguments 
that avail only for the right to teach. The answer is easy 
and very clear." He then devotes more than a page to 
showing how clear it is, but finds himself so confused at the 
end of that explanation that he says at last : "All this will 
be made clearer as we go on." But I do not see that l;e 
keeps his promise in that respect, except it be that he re- 
jects the means of escape offered him, and more distinctly 
commits himself to his original proposition, that the state 
has the right to educate in the full sense of the word ; that 
is, in the sense of giving moral as well as intellectual train- 
ing. Of course I admit he contradicts this in another part, 
as I claim he so frequently did in his original utterance. 

On page 15, line 2 from bottom, he says : "I am met with 
the plea that the argument may be admitted for teaching, 
but not for educating, in the strict sense of the term (F. 
Holaind, p. 6). I answer : There is no essential difference 
between the formation of the mind and that of the heart, if 
the point under consideration be the right to effect that 
formation." He then discusses the subject of education, 
and winds up with the unqualified declaration : " Therefore 
every individual has the right to educate." On page 22 he 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLET. 431 

says : " The state which is boiiiid to sanction the principles 
of moral law is consequently bound to inculcate them on 
the members of society ;" and on page 37 he says : " I have 
asserted the right of the state to educate ;" and on page 26, 
line 27 (Ee joinder), he says he has proved that the state 
may not only teach, but may also educate. So it is clear 
he means to be understood that the state has the right to 
educate in the strict sense of the term. 

Having thus shown the courage of his convictions, and 
his determination to stand by his original proposition that 
the state has the right to educate, he then begins his 
minimizing process to show that we need not be afraid of 
this right, because, after all, it does not amount to much, 
since we must distinguish between "a right and the exercise 
of a right.'" He says that though the state has a right to 
teach children, it has no right " to take pupils by the collar 
and teach them, willy-nilly. If my would-be client is a 
child, I must needs get the consent of his parents." 

This rights then, is only that kind of a right which can- 
not be exercised without the consent of others. Now, if 
this affair were a mere matter of courtesy and of sparing 
the feelings of an opponent, we might easily say. Let him 
have his so-called right, since he is willing to yield the 
reality if we will only let him keep the name ; but the mat- 
ter is too serious for such trifling. Bishop Chatard says of 
the Professor's pamphlet, that it "is no ordinary one; and 
this makes it the more desirable that those who differ with 
him on this question should express their opinion with due 
deference, but manfully, and with weight of reason also" 
(Feb. '92, Am. Ecc. Eev.). 

Now, a right which can be exercised only with the con- 
sent of another is not much of a right. It may be said I 
have a right to take a short-cut through my neighbor's park 
in getting to town from my home, if he consent to my doing 
so ; but that is not true. That is a mere temporary privi- 
lege, which may be revoked even before I make the first 
use of it. I have a right to go through only when it is not 



432 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

necessary for me to ask the consent of anybody, that is, 
after the owner has conveyed the right to me in such a 
manner that he cannot recall it. Then I have a real right 
in the matter. But to talk of a right which cannot be exer- 
cised except by the consent of some one else, is absurd. 
Therefore, a state has not the right to teach, unless it may 
compel the pupils, "willy-nilly," to receive the teaching. 
Parents can do that : therefore parents do have the right to 
teach, but, by the Professor's own admission, the state has 
not. 

Father Holaind's reply troubles the Professor not a 
little. On p. 33 the Professor says : " I come back to my 
original opponent. Father Holaind asks what sort of a 
school can a state that ignores revelation set up ; and he 
answers, the best it can establish are neutral schools, and 
neutral schools are condemned." 

The Professor says on p. 34: "I answer, that the 
Father's argument proves perhaps that the non-Christian 
state is not qualified to exercise over Christians its rights in 
the matter of education, but does not prove that the non- 
Christian state has not the right to teach." 

What does the right amount to if it cannot be used ? 
Why insist on calling this a right when it so clearly is not 
a right ? 

The Professor continues replying to Father Holaind's 
question, and says, p. 34 : " But this is not enough ; and I 
answer, thirdly, that the non-Christian state may exercise 
its right of teaching towards its Christian subjects by es- 
tablishing denominational schools." Ah ! That is what I 
said in my original argument here, p. 99, — that the Profes- 
sor's reasoning would compel the conclusion that the state 
must grant denominational schools. I am glad that in this 
instance at least he admits a logical conclusion to his own 
premises. He is logical again on p. 20, line 24, of the Re- 
joinder when he says : " III. As to the authority of 
parents, I have asserted and proved that parents can never 
lose it ; that, if the state establishes public schools, it is 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 433 

bound to take account of the reasonable wishes of parents, 
and allow them a legitimate share in the carrying on of 
such schools." 

On p. 34, line 37, he again shows how little his alleged 
right of the 'state to teach amounts to where he says : " Let 
it be understood that I am speaking of the establishment 
of schools by the state, not of the use of such schools by the 
parents. Be the state reprehensible or not in establishing 
schools negatively indifferent, more or less dangerous, the 
duties of Catholic parents remain those indicated by the 
Third Council of Baltimore ;" and we have seen that those 
decrees lay down a rule forbidding Catholics to send their 
children to the state public schools — a rule to which there 
may be exceptions only in certain very particular cases. 

He has thus explained away everything that amounts to 
a real right in the state to teach, declaring, in effect, that 
it amounts to but this, — that the state may found and endow 
schools with public money, but that the parents need not 
patronize such schools unless they want to ; therefore if the 
state appoint " capable agents" to teach there, and pupils 
come and are taught, the teachers teach as agents of the 
parents and not as agents of the state ; therefore it is the 
parents that give the agents authority to teach, and not the 
state. 

And now, if your Honors please, as a last word I wish 
to say that I am deeply sensible of the fact that I have in- 
vited in this case the consideration of literature which it is 
not usual to present to civil courts in this country, but 
neither is it usual for us to have cases of this kind to pre- 
sent. It is a new case ; and if in the beginning I thought 
well to ask the indulgence of the Court for the somewhat 
irregular manner in which I felt I would be compelled to 
proceed, it was with full confidence that the request would 
be favorably entertained. In enacting the law in question 
here the Legislature entered upon a new field of legislation, 
and raised new issues for discussion. I had no precedents 
to guide me as to what matter the Court might or might 



434 THE STATE OF OHIO VS. THE EEVo PATKICK F. QUIGLEY. 

not think relevant ; and I can only say that in view of the 
extraordinary claim made here by the state as to its right 
to curtail individual liberty, I felt that whatever arguments 
or illustrations I could find bearing upon the question of the 
liberty of the individual as opposed to the advancing power 
of the state might be legitimately presented. When this 
Court shall have considered these new questions and given 
its views as to how they should be treated, if I should at 
any future time have the honor of addressing it on similar 
questions, I need hardly say that I will gladly avail myself 
of the guide so provided. 

All of which, with profound respect, is now confidently 
submitted. 

EDMUND F. DUNNE, 

Of Counsel for JDefendanU 



BRIEF OF THE HON. FRANK H. HURD IN 
THE COURT OF LAST RESORT. 

Hn tbe Common pleas, Circuit, an& Supreme 
Courts of Qbxo. 



PATRICK F. QUIGLEY, 

Plaintiff in Error ^ 

vs. y Brief. 

THE STATE OF OHIO, 

Defendant in Error, 

Patrick F. Quigley was indicted at the April term of 
1890 of the Court of Common Pleas of Lucas County, for 
a violation of section 11 of the act entitled "An act to 
compel children under fourteen years of age to attend 
school a certain length of time each year," passed April 15, 
1889. 

Section 11 provides " That it shall be the duty of all 
principals and teachers of all schools, public and private, 
to report to the clerk of the board of education of the city, 
village or township, in which schools are situated, the 
names, ages and residence of all pupils in attendance in 
their schools, together with such other facts as the clerk 
may require, in order to facilitate the carrying out of the 
provisions of this act ; and the said clerk shall furnish 
blanks for said purpose, and said reports shall be made in 

435 



436 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

the last week in September, December, February, aud 
April in each year. 

Sec. 13 provides, " Any person or officer mentioned in 
this act and designated as having certain duties to perform 
in, the enforcement of any of its provisions, neglecting to 
perform any such duties, shall be liable to a fine of not less 
than twenty-five (25) dollars or more than fifty (50) for each 
and every ofi'ence." 

On April 25, 1890, sec. 11 was amended, 87 0. Z. 2300, 
by adding to it the following paragraph : " And it shall be 
the further duty of said principals and teachers to report 
to the truant officer, the superintendent of schools, or the 
clerk of the board of education, all cases of truancy or in- 
corrigibility in their respective schools, as soon after these 
offences shall have been committed as practicable." 

Sec. 13 was amended by adding the following para- 
graph : " And mayors, justices of the peace, and probate 
judges shall have jurisdiction to try the offences described 
in this act, and their judgment shall be final." 

Four classes of questions arise upon the record : 

1. Those which relate to the jurisdiction of the court 
of common pleas to try the offence by indictment. 

2. Those which attack the sufficiency of the indictment. 

3. Those which relate to errors committed at the trials 
and, 

4. Those which assail the constitutionality of the law 
under which the prosecution was instituted. 

1. Objection to Jurisdiction. 

As to the jurisdiction of the court of common pleas to 
try the offence, the objection is that section 13, as amended, 
confers exclusive jurisdiction upon mayors, justices of the 
peace, and probate judges. 

Sec. 456 R. S., among other things, provides that the 
court of common pleas " shall have original jurisdiction of 
all crimes and offences, except in case of minor offences. 



THE STATE OP OHIO VS. THE KEY. PATRICK F. QUIGLEY. 437 

the exclusive jurisdiction of which is vested in justices of 
the peace, or that may be vested in courts inferior to the 
common pleas." 

The question presented on this point by sec. 13, as 
amended, is, Does that section vest in the inferior courts, 
therein named, the jurisdiction of the offences defined by 
the act of which that section is a part ? 

The general rule governing the interpretation of such 
statutes is stated in Comm. v. Bank, 32 0. S. 194, as fol- 
lows : " When a statute creates a new offence by prohibit- 
ing and making unlawful anything which wias lawful before, 
and provides a specific remedy against such new offence 
(not antecedently unlawful) by a particular sanction and 
method of proceeding, that method of proceeding and none 
other must be pursued." 

It is not disputed that if the amendatory act of April 19, 
1890, had created the offences therein described for the 
first time, and fixed the penalty and method of procedure as 
described in sec. 13, then the rule above stated would apply 
and the method of procedure therein pointed out would be 
exclusive. 

But it was held by the court below, that the rule did 
not apply, because before the passage of the amendatory 
act ©f April 19, 1890, the original act had created the 
offence defined in such amendatory act, and therefore that 
such offence was not a new one. 

The court below further held that the remedy of the 
present act, by summary proceedings, was not exclusive ; 
and that the prosecutor had his election to prosecute by in- 
dictment or by the summary method indicated by the last 
act. 

Of this I remark : (1) That the offence described in the 
act of 1890 is not the same as that defined in the act of 
1889. It contains additional elements. The last paragraph, 
already quoted, was added to sec. 11. 

(2) The theory that the prosecutor can elect as be- 
tween the two methods of prosecution, can only rest upon 



438 THE STATE OF OHIO Vd. THE liEV. PATRICK F. QUIGLEY. 

the proposition that the remedy of the statute of 1890 is 
cumulative to that of the statute of 1889 ; in other words, 
that the two remedies coexist. But this cannot be, for the 
act of 1890, before it went into operation, repealed the act 
of 1889. 

It is as though the act of 1889 had defined the offence 
and declared expressly that it should be punished by in- 
dictment. Then if a new act were to be passed which, 
without repealing the first act, should provide for the 
punishment of the offence in another manner, it might be 
claimed with show of reason that the latter remedy is 
cumulative, and that the prosecutor might make his elec- 
tion between them. 

But when the act declaring the offence to be punishable 
by indictment has been repealed, then no method of 
punishment is left, except that which is prescribed by the 
repealing statute. Its method of procedure, therefore, is 
not one in addition to that pointed out by the first act, but 
in substitution for it. 

When at common law an offence is punishable by in- 
dictment, and that offence is made punishable by statute, 
the latter remedy is held cumulative, because the common- 
law offence is not abrogated, nor therefore the remedy 
which it prescribes. The two remedies coexist, and the 
prosecution may pursue either one of them. 

But where a statute, redescribing a prior statutory of- 
fence, fixes a new remedy, and repeals the old statute which 
fixed a different remedy, it seems to me apparent that the 
two remedies cannot coexist, inasmuch as the statute 
which created the first one has ceased to exist. 

In Paley on Conviction, page 163, is said : " But some- 
times it happens that after an offence has been created and 
summary jurisdiction over it given by a statute, a second stat- 
ute is passed relating to tbe same matter. Upon this point it 
has been held, that if a later statute again describes an offence 
created by a former one, and affixes a different punish- 
ment varying the procedure and giving an appeal where 



THE STATE OF OHIO VS, THE EEV. PATRICK F. QUIGLEY. 439 

there was no appeal before, proceedings must be taken 
under the later statute, which operates by way of sub- 
stitution and not cumulatively. The same result would, 
it seems, follow an alteration in the procedure and punish- 
ment, without reference to the question of appeal." 

I call the attention of the Court specially tp the case 
of Mitchell vs. Brown, 1 Ellis & Ellis, 267. 

(3) The question, I apprehend, in cases like this is, 
whether the first statute defining the offence and fixing the 
proceeding has been repealed. If it has been, then no 
case can be prosecuted under it, because by the repeal 
all authority to proceed under it has been withdrawn. 
Neither do I suppose that it makes any difference whether 
the first statute itself in terms fixes the method of pro- 
cedure, or whether it is fixed by the general statute defin- 
ing the jurisdiction of the courts. In other words, under 
the statute of 1889 the method of procedure is as plainly 
by indictment in court of common pleas, as if the act it- 
self declared that prosecution should be by that course, 
and the repeal of the act is an abrogation both of the 
offence defined, and of the procedure by indictment to 
punish it. Smith on Constitutional Constructions, page 896; 
Sutherland on Construction, sec. 34 2; Enderlich on Inter- 
pretation, sec. 479. 

(4) I also suggest that the offence defined by the act 
of 1890 is as much a new one as if there had not been a 
similar offence defined by the act of 1889. Would it be 
said that it was not a new offence if a statute which had de- 
fined it once as an offence in this state had been repealed 
fifty years ago ? In a state like Ohio, where there are no 
common-law offences, every offeree created by a statute 
which repeals another statute of the same character is a 
new offence within the rule laid down in 32 0. S. 

II. — Objections to Indictments. 

Two principal objections w^ere urged to the indictment. 
The first one was that in charging the offence an important 



440 THE STATE OF OHIO Vi>» THE REV. PATRICK F. QUIGLEY. 

element found in its definition in the statute was omitted. 
Section 14 makes it the duty of principals and teachers to 
report the names of their pupils " in order to facilitate the 
carrying out of the provisions of this act." The indictment 
fails to make any averment with reference to this element 
of the offence. 

What is the nature of this offence as defined by statute ? 
It is the refusal to report names to the clerk of the Board 
of Education which have been demanded by him from 
principals or teachers of schools for the purpose of facilitat- 
ing the enforcement of the law. 

Must it not be averred that the demand was made by 
him of the defendant for that purpose? 

The rule on this subject is stated as follows in 10 Am, 
and Eng., E. E. Gas., p. 573 : " An indictment based on a 
statute must contain forms of expression and descriptive 
words contained therein to bring the offence precisely with- 
in the definition ; " and again on p. 577 : " When the statute 
creates a new offence unknown to the common laws, the in- 
dictment must set forth all the constituent facts and cir- 
cumstances necessary to bring the accused within the 
statutory provisions." 

The rule in this state is similar to that as laid down 
above, and is found stated in Poage v. The State, 30 0. S. 
234 ; Ellers v. The State, 25 0. S., 387, and Hager v. The 
State, 35 0. .S'. 298. 

The offence for which the defendant is indicted is a 
statutory one. It is for the violation of a duty imposed by 
this statute. 

What is the duty ? It is, in order to facilitate the carry- 
ing out of the provisions of the act, to report to the clerk 
the names of the pupils in attendance upon the schools of 
defendant, where the clerk has requested such information 
for that purpose, and furnished blanks to him. 

The offence therefore consists in neglecting to report 
names after they have been demanded for the purpose of 
facilitating the carrying out of the provisions of the act. 



THE STATE OF OHIO VS, THE REV. PATEICK F. QUIGLEY. 441 

and with the intent therefore, on the part of the principal, 
of obstructing the enforcement ot the act. 

The object with which the duty imposed is to be per- 
formed is the facilitation of the enforcement of the law. 
It is also the object for which the request of the clerk is 
made of the principal of the school. ' The gist of the of- 
fence, therefore, is the refusal to report with intent to 
prevent the enforcement of the act. 

But there is no reference anywhere in the indictment 
to this element; neither in the averment charging the 
duty, the request, or the neglect. 

I insist that the indictment is defective, because it does 
not bring the offence as charged within the statutory 
definition. 

In an early case reported in 1 Hale, 220, the doctrine 
was thus laid down : " In an indictment upon the repealed 
Statute 4 C. 11 (which makes it high treason to round or 
file any of the coin of the realm * for wicked lucre or gain's 
sake ') it was necessary to charge the offence to have been 
committed for the sake of wicked lucre or gain, otherwise 
it would be void." 

The case is cited with approval in the latest edition of 
Wharton's Criminal Law. 

2. A second objection to the indictment is made because 
of the failure to aver whether the defendant was a princi- 
pal of a public or a private school. The averment in the 
indictment simply is that he is the principal of a school. 

Section 1 of the act recognizes three classes of schools- 
public, private, and parochial. Now when the duty to 
report is imposed by the statute, it is confined to the prin- 
cipals of all public or private schools. Parochial schools 
are not expressly named, although they are recognized in 
other parts of the act as separate and distinct from public 
and private schools. Inasmuch as they are not in express 
language included in the schools from which reports are to 
be made, they ought not to be included by construction, 



442 THE STATE OF OHIO VS. THE REV. PATRICK E. QUIGLEY. 

because the statute is a penal oue and should be construed 
strictly. 

Parochial schools are not public schools, because they 
are not organized by the public authorities and supported 
by public taxation. 

Neither are parochial schools private schools in the 
sense in which that phrase has been employed in the 
statutes of the state relative to education. By "private 
schools " are meant those schools which are conducted by 
teachers who are employed and paid for by parents desir- 
ing to educate their children. Such are not parochial 
schools, where the money is raised by a congregation to 
furnish education to all the children within the limits of a 
parish, whether their parents have contributed to such 
school fund or not. 

Parochial schools have never been supposed to be 
affected by legislation heretofore enacted in this state with 
reference to private schools. Section 363 E. S. provides 
that the commissioner of public schools "shall annually 
require of the president, manager, or principal of every 
seminary, academy, and private school a report of such 
facts arranged in such form as he prescribes." 

In the enforcement of this provision, no reports, as I 
have been informed, have ever been exacted from the 
teachers of parochial schools. 

The practical construction given to our public education 
law, by those appointed to administer it, in this regard, is 
that parochial schools are not included in private schools. 

The indictment is, therefore, defective in not adding 
that the school of which the defendant was the principal 
was either a public or a private school. 

Iir. — ERRORS AT TRIAL. 

The objections which are made to the record on account 
of the errors at the trial relate principally to those which 
occurred in the charge of the Court to the jury in con- 
struing certain provisions of the law. 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 443 

The first of these involves the construction of the 
second paragraph of section 9, which provides that " this 
law shall not be operative in any school district where 
there are not sufficient seating accommodations to seat 
children compelled to attend school under the provisions 
of this act." 

The contention made in the court below was that 
before the law became operative in any district the public 
authorities must have seating capacity, in buildings of 
their own, sufficient for all children who might be com- 
pelled to attend school. It was clearly shown at the trial 
that there was not sufiicient seating capacity in the public 
schools of the city of Toledo for all children between the 
ages of eight and fourteen, who could be compelled to 
attend school, when it was considered also that seats had 
to be provided for those under eight and over fourteen 
who were within the school ages. The testimony shows 
that if the parochial schools had been closed, and the 
pupils in attendance upon them had been put in the 
public schools, the latter would have been utterly unable 
to supply them with seats. 

Now, if section 9 means that the public authorities 
must supply in the public schools seating capacity suffi- 
cient for all the scholars within the district, then it follows 
that the law was " net operative in Toledo, because no such 
seating capacity was furnished. 

The court below held that attendance upon the paro- 
chial schools was a compliance with the provisions of the 
act, and the seats in such parochial schools should be 
counted in ascertaining whether there was sufficient seat- 
ing capacity in the schools of Toledo. 

The circuit court in volume 26, Law Bulletin 24, of 
December 14, 1891, page 659, says in considering this 
question : " "We think, also, that the construction that is 
placed by the court upon the law, that it is sufficient if 
seating capacity is furnished to those who desire to attend 
public schools (and thus not taking into consideration those 



444 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 

who are attending private or parochial schools), is the true 
construction to be placed on the act, and that the charge 
made by the court of common pleas was correct in that 
respect." 

All that I wish to say upon this point is to call the 
attention of the Court to the language of section 9, and 
to insist (1) that seating accommodations in the public 
schools are alone referred to in this section, and (2) that 
these must be sufficient to seat not only "those who desire 
to attend public schools," but all who may be compelled to 
attend school under this act, which includes all children 
within the ages indicated in this act, whether they attend 
parochial, private, or public schools. 

A second objection is that the Court in charging the 
jury said that the defendant under the proof was a princi- 
pal within the terms of the statute. 

The proof showed that the defendant was not a teacher 
in his school, and that his connection with it was of a 
spiritual nature, growing out of his relation to the congre- 
gation of St. Francis de Sales, as pastor. It was insisted, 
in behalf of the defendant, that the statute imposed the 
duty of making reports upon the teacher, either principal 
or subordinate, and that inasmuch as defendant did not 
teach, he was not reached by ihe provisions of this act. 

Whether he was a principal or not was a question of 
fact, and ought to have been left to the jury ; and even if a 
question of law, I insist that it was error to hold that any 
one was bound to report under this act, unless he was a 
teacher, either principal or inferior, in a school. 

A third objection was to that part of the charge of the 
Court, and its decision refusing a new trial, in which a con- 
struction was given to section 13. The section provides 
that " any person or officer mentioned in this act, and des- 
ignated as haying certain duties to perform in the enforce- 
ment of this act, neglecting to perform any such duties, 
shall be liable to a fine." 

It was claimed, in behalf of the defendant, that this 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 445 

section was not intended to affect principals and teachers 
in schools, because they are not designated as having 
duties to perform in the enforcement of the act. 

Their duties simply related to making reports which 
would give information to those who were charged with 
the enforcement of the act, but did not impose any duty 
upon them to perform in enforcing the act. 

In other words, the claim was that only the truant offi- 
cers and superintendents of schools and clerk and mem- 
bers of the board of education were charged with the duty 
of enforcing the act, and that the penalties denounced in 
section 13 were intended to be inflicted upon them only. * 

This being a penal section, which ought not to be ex- 
tended by construction, I submit that in its interpretation 
it ought to be confined to those only who come clearly and 
expressly within its terms. 

IV. — THE LAW UNCONSTITUTIONAL. 

There are four grounds on which it is claimed that the 
law is unconstitutional. Before discussing them in detail, 
I will consider the nature of parochial schools and the 
effect upon them which the law produces. 

What are parochial schools ? The testimony in this 
case has disclosed fully the nature of their organization : 
they are formed by the parents of the parish, who desire 
to have schools in which their children may be educated ; 
they are maintained by the voluntary contributions of those 
parents, and are managed and governed by the rules and 
authority of the church of which the parish is a part, 
under such constitution and by-laws as are prescribed by the 
bishop of the diocese, and which have been submitted in 
evidence in this case. They are maintained without public 
aid ; they are private institutions, designed by the parents 
themselves for the purpose of performing the natural duty 
that has been devolved upon them by virtue of their having 
assumed the parental relation. They are not in any regard 



446 THE STATE OF OHIO VS. THE REV. PATEICK F. QUIGLEY. 

the creatures of public autliority, nor in any sense subject 
to public control. They are subject to the control of the 
private individuals whose moneys contribute the fund,., out 
of which their support comes. Does this law interfere 
witli the administration and management of these parochial 
schools ? An analysis of its provisions is made necessary ; 
and I desire to call attention specially to the first section 
and to the amendment to it, which is found in volume 87 
0. aS\316:* 

" All parents, guardians, or other persons who have 
care of children, shall instruct them, or cause them to be 
instructed, in reading, spelling, writing, English grammar, 
geography, and arithmetic ; and every parent, guardian, or 
other person having control and charge of any child be- 
tween the ages of 8 and 14 years, shall be required to send 
any such child or children to a public or private school for 
a period of not less than 20 weeks in city districts in each 
school year, commencing September 1, 10 weeks of which 
shall be consecutive, which shall commence within the first 
four weeks of the first term of the school year, and in 
village and township districts not less than 16 weeks in 
each school year, 8 of which shall be consecutive, unless 
such child or children are excused from attending by the 
superintendent of the public, private, or parochial schools 
in cities, or by authority of the board of education in vil- 
lages and townships, when it shall have been shown to the 
satisfaction of said superintendent, or said board, that the 
physical or mental condition of such child or children has 
been such as to prevent his, her, or their attendance at 
school, or that said child or children are taught at home 
by some qualified person or persons in such branches as 
are usually taught in primary schools." 

This was amended in the statute found in 87 0. S., re- 
ferred to, by inserting the word '* special " before " vil- 
lage," so as to bring in special districts, and by the addi- 
tion : Provided that all youth between 8 and 16 years 

* See Revised Statutes of Ohio of 1890. Giauque, vol. i. sec. 4029. 



THE STATE OF OHIO VS. THE KEV. PATRICK P. QUIGLEY. 447 

of age, not engaged in some regular employment, shall 
attend school for the full term the schools of the district 
in which thej reside are continued in the school year, 
unless excused for the reasons named in this section ; 
and if the parents or guardians having legal charge 
of such youth shall fail to send these youth to school 
regularly for said full term, or said youth shall absent 
themselves from school, without satisfactory excuse, said 
parents and guardians and said youth shall be subject to 
the provisions and penalties of section 8 of this act. 

This section is the foundation of the other provisions 
of the law : it provides, first, that the parent or guardian, 
etc., shall be compelled to educate his child in the rudimen- 
tary branches ; secondly, that they shall be compelled to 
send their children between the ages of 8 and 16 to 
the public or private schools for the period fixed ; and 
thirdly, upon failure or neglect to comply therewith, they 
shall be subject to prosecution and penalty. The penalties 
provided to secure its enforcement are as follows : First, 
by prohibiting the employment of children under 14 years 
of age, unless the provisions of section 1 shall have 
been complied with ; second, by imposing penalties upon 
the parents, etc., for every violation of section 1 and section 
4 of said act, of not less than $5 or not more than $20 for the 
first oifence, and not less than $20 for each subsequent 
offence, or imprisonment of not less than one month nor 
more than three ; third, in the case of habitual truants 
or juvenile disorderly persons, by sentencing them to the 
Boys' Industrial School at Lancaster, or to the Girls' In- 
dustrial Home at Delaware, Ohio ; fourth, by authorizing 
the appointment of police officers to examine into cases of 
truancy, when requested so to do by the superintendent of 
public schools in cities, or the board of education in other 
districts, to warn said truants, parents, etc., of the final 
consequences of truancy if persisted in, also to notify such 
parents, etc., that said child between 8 and 14 years of 
age is not attending school ; to require the parents, etc., 



448 THE STATE OF OHIO VS. THE KEV. PATRICK F. QUIGLEY. 

to cause such child to attend some recognized school within 
five days after such notice ; to make complaints against 
such parents, etc., in any court of competent jurisdiction 
for neglect, failure or refusal of such parent, etc., to cause 
said child or children to so attend school ; to make com- 
plaints against juvenile disorderly persons where parent, 
etc., has been discharged because of inability to cause child 
to attend school as required ; fifth, by providing that the 
truant officer shall make daily reports to the superintendent 
of public schools during the school term in cities, etc. ; 
that he shall be authorized to enter factories, workshops, 
stores, and all other places where children may be employed, 
and perform such other services as the superintendent 
of schools or the board of education may deem necessary 
to the preservation of the morals and good conduct of 
school children and for the enforcement of this act ; sixth, 
by requiring all principals and teachers of all schools, 
public and private, to report to the clerk of the board of 
education of the city, etc., in which schools are situated, 
the names, ages, and residence of all pupils in attendance 
at their schools, together with such other facts as said 
clerk may require in order to facilitate the carrying out of 
the provisions of this act, and the said clerk shall furnish 
blanks for said purpose, and said reports shall be made in 
the last week of September, December, February, and 
April in each year. 

From this statement it will appear that all children 
between the school ages named are subject to the juris- 
diction of the public board of education and the superin- 
tendent of public schools in the following particulars : 
First, the truant officer is chosen by the board of education 
and invested with the authority which gives him a visitorial 
power over the parochial schools, without consideration of 
or consultation with those interested therein ; second, in 
the case of villages the public authorities alone can ex- 
cuse children from attendance upon the ground of physical 
or mental inability ; therefore a child in a village district 



THE STATE OF OHIO VS. THE EEV. PATKICK F. QUIGLEY, 449 

in a parocliial school, wisliing to be excused for some of 
the reasons named, must submit his request for excuse to 
the Board of Education ; third, when a child under the age 
of 14 years is employed by any one, the employer must 
require proof to be given that the child has completed 
the usual course of primary and grammar grades in the 
public or private schools, and must keep record of such 
proof, which the truant officer is permitted to examine and 
review in all cases ; this involves the possibility of passing 
judgment by public officers upon the sufficiency of the 
course of private and parochial schools ; fourth when a child 
between the ages of 14 and 16 is not able to read and write 
the English language he is obliged to attend school at least 
one half of each day, or to attend evening school organized 
and maintained by the Board of Education, or to take 
regular private instruction from some person qualified, in 
the opinion of the superintendent of schools in cities and of 
the clerk of the Board of Education in other districts, to 
teach such branches, until he or she shall obtain a certificate 
from the superintendent, etc., certifying that said minor 
can read at sight and write legibly simple sentences in the 
English language ; fifth, parents who violate section 4 of 
the act cannot be relieved from its penalties on account of 
the physical or mental disabilities of their children,^ unless 
they are excused from attendance by the superintendent of 
public schools in cities, thus making the continuance of a 
child in a parocliial school dependent, not upon the rules, 
etc., of such school or its superintendent, but upon those 
of the officers of the public schools ; sixth, the truant officer 
shall perform such other services as the superintendent of 
schools or the board of educations hall deem necessary to 
the preservation of the morals and good conduct of school 
children and for the enforcement of this act ; the manage- 
ment, therefore, of all these matters is thus conferred upon 
the Board of Education and the superintendent of schools; 
seventh, the truant officer reports to the superintendent of 
the public schools or the board of education — thus entirely 



450 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

ignoring any parochial superintendent ; eighth, he shall 
also keep a record of his transactions, subject to inspection 
of the officers and members of the Board of Education, 
and not of any one else ; ninth, while it shall be the duty 
of all truant officers to examine into all cases of truancy, 
when any such come before their notice, or when re- 
quested to do so by the superintendent of public schools 
or by the Board of Education, such truant officer otherwise 
acts only upon direction of the superintendent or board of 
education, and all acts under this law are subject to the 
judgment of the superintendent of public schools or 
the board of education; tenth, it requires all principals 
and teachers of all schools — parochial, public, or private — 
to report to the clerk of the board of education of the city or 
other districts in which schools are situated, the names, ages, 
and residence of all pupils in attendance at their schools, 
together with such other facts as said clerk may require. 

It will thus be seen that the law attempts to confer 
upon the superintendent of public schools and the boards 
of education powers over the parochial schools — 

First, to determine what are sufficient grounds of excuse 
for non-attendance upon school ; second, to exercise a visi- 
torial jurisdiction over their management ; third, to review 
the sufficiency of their grammar and primary courses of 
instruction ; fourth, to make the continuance of absence 
from school depend upon the approval of other than their 
own teachers ; fifth, to maintain discipline ; sixth, to in- 
quire into all their cases of truancy ; seventh, to compel 
their principals and teachers to report to the clerk of the 
board of education of the city or other districts in which 
their schools are situated, the names, ages, and residence 
of the pupils in attendance, together with such other facts 
as said clerk may require. It will thus be seen that the 
powers intended to be conferred by this act as to the 
attendance of pupils upon private schools, the maintenance 
of discipline in them, and the duties of their teachers 
— powers if exercised as they may be — will end in the de- 



THE STATE OF OHIO VS. THE REV. PATRICK T. QUIGLEY. 451 

struction of private and parochial schools, and all educa- 
tion then become practically subject to the authority of the 
state ! This statute proposes two important innovations in 
the law as it has hitherto existed in the State of Ohio. It 
compels the parent to send his child for a certain time to 
school, to be taught a certain course of study, under pen- 
alty of fine and imprisonment ; second, it establishes regu- 
lations which interfere with the management of private 
and parochial schools, and thus embarrass their efficiency. 
I maintain that this law is unconstitutional for four 
reasons : 

1. By the natural law the parent has the right to edu- 
cate the child. This right, like other natural rights, is 
inalienable — cannot be surrendered by the parent, nor taken 
away from him, nor abridged by society. It is a right 
above constitutions and law, which cannot be destroyed or 
impaired by any act either of constitutional conventions or 
legislatures. It follows, therefore, that if in the constitu- 
tion there was a provision authorizing the legislature to 
interfere with or impair this natural right of the parent, it 
would be void, because society, in ordaining its fundamental 
law, cannot confer such power upon a legislature. I shall 
not add anything further to the learned and exhaustive 
argument of my associate. Judge Dunne, upon this point. 

2. But the constitution has not attempted to interfere 
with the natural right of the parent to educate his child, 
and therefore has not authorized such legislation as is pro- 
posed by this act. Such legislation can only be sustained 
upon the doctrine that the constitution has conferred upon 
the state the right to educate the child, while, in fact, as I 
shall attempt to show, the whole scope and purpose of our 
constitutional provision has been merely to afford means to 
aid parents in the performance of their natural duty. 

The only provisions of the constitution from which it 
can be claimed that the general assembly has derived the 
power to pass this law are the following : Article II., section 
1, which ''provides that the legislative power of the state 



452 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

shall be vested in a general assembly, which shall consist 
of a senate and House of Representatives ; section 7, Article 
I., from the Bill of Eights : " All men have a natural and 
indefeasible right to worship Almighty God according to 
the dictates of their own conscience. No person shall 
be compelled to attend, erect, or support any place of 
worship, or maintain any form of worship, against his 
consent ; and no preference shall be given by law to 
any religious society ; nor shall any interference with 
the rights of conscience be permitted. No religious test 
shall be required as a qualification for office, nor shall 
any person be incompetent to be a witness on account 
of his religious belief ; but nothing herein shall be con- 
strued to dispense with oaths and affirmations. Religion, 
morality, and knowledge, however, being essential to good 
government, it shall be the duty of the general assembly to 
pass suitable laws to protect every religious denomination in 
the peaceable enjoyment of its own mode of public worship, 
and to encourage schools and the means of instruction." * 

And Article YI. of the constitution, which treats of the 
subject of education : Section 1, " The principal of all 
funds arising from the sale or other disposition of lands 
or other property granted or intrusted to this state for edu- 
cational and religious purposes, shall forever be preserved 
inviolate. Section 2, The general assembly shall make 
such provisions, by taxation or otherwise, (1) as, with the 
income arising from the school trust fund, will secure a 
thorough and efficient system of common schools through- 
out the state ; (2) but no religious or other sect or sects 
shall ever have any exclusive right to, or control of, any 
part of the school funds of this state." 

I now call attention to the rule, which it is always nec- 
essary to keep in mind, and which governs in construing 
the constitution of a state. It is well expressed in the 
People ex ret v. Flagg et al., 46 N. Y. Reports ^ page 401, 
reading from page 404 : " All legislative power is conferred 
* See Kevised Statutes of Ohio, 1890, Vol. 2, p. 2673. 



THE STATE OF OHIO VS. THE KEY. PATEICK F. QUIGLEY. 453 

iipou tlie Senate and Assembly ; and if an act is within the 
legitimate exercise of that power, it is valid, unless some 
restriction or limitation can be found in the constitution 
itself. The distinction between the United States constitu- 
tion and our state constitution is, that the former confers 
upon Congress certain specified powers only, while the latter 
confers upon the Legislature all legislative power. In the 
one case the powers specifically granted can only be exer- 
cised. In the other all legislative powers not prohibited 
may be exercised." 

In the 11 0. S., p. 542, the rule was laid down by Judge 
Gholson. He says : " It will be observed that the provis- 
ion is not that the legislative power, as conferred in the 
constitution, shall be vested in the general assembly, but 
that the legislative power of this state shall be vested. 
That includes all legislative power which the object and 
purposes of the state government may require, and we 
must look to other provisions of the constitution to see 
how far and to what extent legislative discretion is quali- 
fied or restricted. 

"Hence the difference between the constitution of the 
United States and a state constitution such as ours. In the 
former we look to see if a power is expressly given ; in the 
latter to see if it is deined or limited." 

One fact, which is very persuasive in determining this 
question, is that in the whole history of the state for 
three-quarters of a century no such law as this was ever 
passed before. 

In People v. Purdy, 2 Hill, 39 and 40, the court in 
discussing the effect of no legislation on a particular sub- 
ject, in determining whether such legislation is con- 
stitutional, said : " These legislative precedents are entitled 
to the more consideration from the fact that they are dis- 
claimers of power such as public bodies do not usually 
make where there is any fair and reasonable ground for 
maintaining their authority." 

In The State v. Frame, 39 0. S. 420, Okey, judge, said : 



454 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

" For more than 30 years after the adoption of tlie con- 
stitution, no statute in principle like the act of 1883 was 
passed. This, of course, is not conclusive against the 
existence of the power so to legislate ; but it must be re- 
membered that during all that time the subject was con- 
stantly agitated, and the absence of legislation of this 
character affords evidence that the general opinion was 
against the authority to pass such an act." When it is con- 
sidered that the subject of education has been discussed 
and legislated upon by every general assembly from the 
foundation of the state, and that it has been constantly in 
the public mind ever since, and that no compulsory 
education law was ever passed until 1877, it would seem to 
justify the conclusion that such absence of legislation was 
a disclaimer by the Legislature of the power to^ enact it, 
and that the general opinion was against its existence. 
I will next inquire, what is tho nature of the legislative 
power which is conferred by the first section of Article 11. 
of the constitution? Generally it is all the authority 
which is legislative in its nature and was understood to be 
and recognized as such at the time of the framing of the 
constitution. (See Taylor v. Potter, 4 Hill, 144.) 

In Lafayette, Muncie & Bloomington R. R. Co. and 
Another v. Geiger, 34 Indiana, pp. 185, 202, and 203, the 
court goes on to state several rules of constitutional con- 
struction, as laid down by the Supreme Court of the United 
States : " 1st. The framers of the constitution must be 
understood to have employed words in their natural sense, 
and to have intended what they said ; and in construing 
the extent of the powers which it creates there is no other 
rule than to consider the language of the instrument which 
confers them, in connection with the purpose for which 
they were conferred. The courts should look to the nature 
and objects of the particular powers, duties, and rights in 
question, with all the lights and aids of contemporary 
history, and give to the words of each provision just 
such operation and force consistent with their legitimate 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLET. 455 

meaning as will fairly secure and attain the end pro- 
posed. 

" 2d. The court should look to the history of the times 
and examine the state of things existing when the con- 
stitution was framed and adopted, to ascertain the old law, 
the mischief, and the remedy. Thus the language used in 
the federal constitution as to the power of pardoning must 
be construed by the exercise of that power in England 
prior to the Kevolution, and in the states prior to the adop- 
tion of the constitution." 

" 3d. A cotemporary exposition of the constitution, 
practised and acquiesced in for a period of years, fixes the 
construction, and the court will not shake or control it." 

And the same doctrine is announced in Leavenworth 
County V. Miller, 7 Kansas, p. 479 ; and 5 p. 617. These 
authorities and many more which might be cited approve 
the following propositions : 

1. The legislative power is not unlimited ; nor are its 
limitations to be found alone in the express provision of 
the constitution. They may arise either from necessary 
implication, or from recitals in the Bill of Eights, or from 
the indefensible nature of the rights which the legislation 
is designed to affect. 

2. Where there is a natural right which the legislative 
power in Great Britain at the time of the settlement of the 
colonies had not undertaken to control, which was not re- 
garded as being within the scope of such power at the 
time of the formation of our national and state constitu- 
tions, and which for nearly a century remained unaffected 
by any act of the general assembly, it is a warranted con- 
clusion that such right cannot be controlled or interfered 
with by legislative enactment. 

With these principles of constitutional construction in 
view, I maintain that the subject of education was never 
regarded as within the control of the legislative power, 
except so far as the provisions for public education 
were concerned ; and first at common law. In first Black- 



456 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

stone, p. 450, it is said : " The last duty of parents to their 
children is that of giving them an education suitable to 
their station in life ; a duty appointed by reason, and of 
far the greatest importance of any. For, as Puffendorf 
very well observes, it is not easy to imagine or allow that 
a } arent has conferred any considerable benefit upon his 
child by bringing him into the world, if he afterwards en- 
tirely neglects his culture and education, and suffers him to 
grow up like a mere beast, to lead a life useless to others 
and shameful to himself. Yet the municipal laws of most 
countries seem to be defective in this point, by not con- 
straining the parent to bestow a proper education upon 
his children. Perhaps they thought it punishment enough 
to leave the parent who neglects the instruction of his 
family to labor under those griefs and inconveniences 
which his family so uninstructed will be sure to bring 
upon him. Our laws though their defects in this partic- 
ular cannot be denied, have in one instance made a wise 
provision for breeding up the rising generation, since the 
poor and laborious part of the community, when past the 
age of nurture, are taken out of the hands of their parents 
by the statutes for apprenticing poor children, and are 
placed out by the public in such a manner as may render 
their abilities in their several stations of the greatest ad- 
vantage to the commonwealth. The rich, indeed, are left 
at their own option, w^hether they will breed up their 
children to be ornaments or disgraces to their family. 
Yet in one case, that of religion, they are under peculiar 
restrictions." 

So we see, at the time of Blackstone, there was no such 
thing as compulsory education known ; and moreover there 
was no such thing as public education, except for those who 
had no one to care for them ; it was entirely in the hands 
of private instructors or parents ; and from that time to 
this day, as far as I am advised, there is no system in Eng- 
land providing for public ^ucation ; and the moneys paid 
for education are divided among the teachers and prin- 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 45? 

cipals, in proportion to their efficiency, or according to tlie 
number of scholars. 

In the second of Kent's Commentaries, page 196, it is 
said: 

" The education of children in a manner suitable to 
their station and calling is another branch of parental duty, 
of imperfect obligation generally in the eye of the mu- 
nicipal law, but of very great importance to the welfare of 
the state. Without some preparation made in youth for 
the sequel of life, children of all conditions would prob- 
ably become idle and vicious when they grow up, either 
from the want of good instruction and habits, and the 
means of subsistence, or from want of rational and useful 
occupation. A parent who sends his son into the world 
uneducated, and without skill in any art or science, does a 
great injury to mankind as well as to his own family, for he 
defrauds the community of a useful citizen, and bequeaths 
to it a nuisance. This parental duty is strongly and per- 
suasively inculcated by the writers on natural law, Solon 
was so deeply impressed with the force of the obligation 
that he even excused the children of Athens from main- 
taining their parents if they had neglected to train them 
up to some art or profession. Several of the states of antiq- 
uity were too solicitous to form their youth for the various 
duties of civil life even to intrust their education solely to 
the parent ; but this, as in Crete and Sparta, was upon the 
principle, totally inadmissible in the modern civilized world, 
of the absorption of the individual in the body politic, and 
of his entire subjection to the despotism of the state." 

In Brown on the Domestic Relations, page 69, under 
the subject, *' Duties of Parents ** it is said concerning the 
duty to educate their children : " This is generally a moral 
rather than a legal duty." " In New York there is a system 
of public education ; but it is practically a dead letter." 

In "Walker's American Law, p. 217, it is said : " Next as 
to protection, a parent may certainly go as far in defending 
his children from harm as in defendinoj himself. The law 



458 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

permits liim to do so, but it does not undertake to compel 
him so to do, or punish him for not so doing. And lastly 
as to educatio/ij the same is true. A parent of the most 
unbounded means may, in spite of the law, bring up his 
children in the most deplorable ignorance. The truth, 
therefore, is that these are not matters of legal obligation. 
The law has left them to the strong impulses of natural 
affection." 

From these authorities and considerations it appears 
that at common law there was no such thing as compulsory 
education. That system of jurisprudence did not interfere 
with parents in the performance of their duty of educating 
their children ; much less did it permit interference with 
schools established by parents for that purpose. It seems 
clear that it was never considered at common law that 
education was the work of the public authorities, or that con- 
trol of it came within the scope of ordinary legislative 
power. 

It follows that when the constitution of 1801 was 
adopted by the people of this state it could not have been 
intended in the general grant of legislative power to give 
authority to the general assembly to interfere with and con- 
trol private education, and this for the reason, in addition 
to those already suggested, that education was not regarded 
before that time as a subject of municipal regulation. 

Such, indeed, seems to have been the opinion of the 
general assembly after the adoption of the constitution of 
1801. 

The first law on the subject of education that I find is 
published in 2 Chase, 833 and 898. That provides that the 
money realized from the sale of section 16 in the different 
townships which had been granted for purposes of educa- 
tion to the state should be divided among the scholars 
or the teachers of the scholars in each school district, 
according to the enumeration. This money, this fund by 
the first law of Ohio on the subject, was divided pro rata 
among the scholars of the state. 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 459 

The constitution of 1801 contained only two provisions 
on the subject of schools. The last paragraph of section 3, 
Article YIIL, provides: " But religion, morality, and knowl- 
edge being essentially necessary to good government and the 
happiness of mankind, schools and the means of instruc- 
tion shall forever be encouraged by legislative provision 
not inconsistent with the rights of conscience." 

Section 25, Article VIII., provides: "That no law shall be 
passed to prevent the poor in the several counties and town- 
ships within the state from an equal participation in the 
schools, academies, colleges, and universities within this 
state which are endowed in whole or in part from the rev- 
enues arising from donations made by the United States 
for the support of schools and colleges ; and the doors of 
said schools, academies, and universities shall be open for 
the reception of scholars, students, and teachers of every 
grade, without any distinction or preference whatever con- 
trary to the intent for which said donations were made." 

Under these provisions the common school system of 
Ohio was established. The first act on the subject was 
passed Feb. 5, 1825. The preamble to it was : "Whereas 
it is provided by the constitution of the state that schools 
and the means of instruction shall forever be encouraged 
by legislative provision." 

In this act and many subsequent ones amendatory 
thereof, the preamble sets out the particular section rela- 
tive to schools, in the constitution, from wdiich the power 
io pass the acts was derived. It was not supposed that it 
came from the general grant of legislative power, but from 
special grant of authority to encourage schools by legisla- 
tive provision. 

The original act establishing common schools, and 
those amendatory and supplemental to it, did not contain 
any compulsory provision of any sort, and did not assume 
to interfere in any particular with private schools. The 
whole and palpable object of the system was to furnish 
education to those who did not desire to obtain it else- 



460 THE STATE OF OHtO VS. THE KEY. PATEICK F. QUIGLEY. 

where. It was a public system, sustained by public taxes, 
and in no way trenching upon the private schools, nor 
upon the right of those who established them to control 
them. 

The language of the constitution of 1801, the legislation 
under it. and the universal practice in this state for half a 
century show that the principles of the Ohio law on the 
subject of education did not vary from those of the com- 
mon law already pointed out. In other words, at the time 
of the adoption of the constitution of 1851 it was univer- 
sally recognized in Ohio as the correct doctrine on this 
subject, that education was the duty of the parent ; that 
common schools should be established for those who 
desired to attend them, but that this should work no inter- 
ference with the private schools nor give to the public any 
control over them. Indeed, the earlier Ohio legislation 
was, as already shown, directed to the encouragement of 
private schools by dividing the public funds among them. 

It was, therefore, at a time of the universal acceptance 
of these principles by the people of Ohio that the constitu- 
tion of 1851 was ordained. If other views of education 
were to be adopted, and it was intended to confer upon the 
state the whole power over the subject, would not some 
clear, specific grant of power to that effect be required to 
show it ? Can such an entire change from the principles 
of the old constitution be inferred from the mere general 
grant of legislative power ? For half a century a similar 
grant had not been supposed to confer such an authority, 
and it would seem to be the reasonable view to say that 
the same meaning which the words of the grant carried in 
the old thej should carry in the new. In other phrase, 
the legislative power before 1851 did not include authority 
over the subject of education ; it only enabled the general 
assembly to legislate as to that education which the con- 
stitution provided for — viz., public or common school edu- 
cation. It did not include control of private education, 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 461 

and never was nnderstood to authorize interference with or 
regulation of private schools. 

When, therefore, the new constitution made the general 
grant of legislative power, it must be presumed that it was 
intended thereby to grant authority to legislate as to edu- 
cation in the manner and to the extent that such power had 
been theretofore exercised, unless the special grant con- 
ferred a new or different power. 

But there are no such sj)ecific grants. Indeed, the ar- 
ticle of the constitution granting power over the subject 
limits it to common schools or public education. The lan- 
guage is clear and explicit. Section 2, Article YL, de- 
clares : " The general assembly shall make such provisions 
by taxation or otherwise, as, with the income arising from 
the school trust fund, will secure a thorough and efficient 
system of common schools throughout the state." 

Nothing but a common school system was contemplated 
by the framers of the constitution in the article which 
treats of the subject of education. This, I maintain, can 
give no power to interfere with private education, nor with 
the parents who send their children to private schools, nor 
with the scholars who attend them. It authorizes only the 
establishment of a system of public education for the use 
of those who wish to avail themselves of it, and of course 
such legislation as is necessary to produce that result. 
This may authorize the passage of a law to compel the at- 
tendance of scholars who have chosen to accept the public 
education, but it is far from conferring power upon the 
general assembly to pass a law compelling attendance upon 
the public schools by their scholars, which shall assume 
control of private education, I will not dispute that legis- 
lation compelling attendance of their scholars upon the 
public schools might be constitutional where its sole pur- 
pose and effect is to secure an efficient common school sys- 
tem. But I deny that the Legislature possesses authority 
to compel the education of any one or to interfere with the 
private education which parents see fit to give their chil- 



462 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

clren. My conclusion, therefore, upon this point is that 
(1) power to pass the act under consideration was not con- 
ferred in the general grant of legislative power, because 
neither at the common law, nor under the constitution of 
1801, nor in the general customs of the people of this state 
prior to 1851, was that power supposed to extend to the 
subject of private education ; and (2) authority to pass it is 
not found in the article as to education, which limits the 
legislative power to making such provisions as shall se- 
cure a "thorough and efficient system of common schools." 
This is equivalent to a declaration in the constitution that 
the Legislature shall exercise no power over the subject of 
education except to establish common schools and make 
them efficient. The powder conferred by Article YI. is ex- 
clusive. 

I maintain that when specific power over a particular 
subject is given, it will be presumed to be exclusive and 
withdraw that subject from a more general grant of power. 
It follows, therefore, that even if in the general grant of 
legislative power the authority to interfere with private 
schools was included, it will be held to be withdrawn from 
that general grant by the specific grant in Article YI. 
This doctrine is recognized in Beeves v. Treasurer of 
Wood County et al., 8 0. S. 339. The constitutional pro- 
vision under discussion was section 6, Article XIII., as 
follows : " The general assembly shall provide for the 
organization of cities and incorporated villages by general 
laws, and restrict their power of taxation, assessment, 
contracting debts and loaning their credit, so as to prevent 
the abuse of such power." 

The court says : " It is urged in argument that inasmuch 
as the power of authorizing assessments, as distinct from 
taxes proper, is by the language of the constitution recog- 
nized only in connection with its exercise by cities and vil- 
lages, therefore under the maxim expressio unius, etc., the 
power of the Legislature to authorize assessments must be 
limited to its exercise by cities and villages. This argu- 



THE STATE OF OHIO VS. THE REV. PATRICK F, QUIGLEY. 463 

ment would be entitled to great weight, and it seems to me 
conclusive weight, if tlie clause of the constitution referred 
to contained or was intended to express a grant of the power 
of assessment as distinct from that of taxation proper. In 
that case, the grant being in terms limited, the maxim ex- 
joressio unius would fairlj apply, and all implications of 
power beyond the terms of the grant would be held to be 
excluded. But such is not the case. That clause of the 
constitution does not contain, nor is it intended to express, 
any grant of the power of assessment. It merely mentions 
the power of assessment as an existing power, and does this 
simply in a mandate upon the Legislature to restrict its ex- 
ercise and provide against its abuse by cities and villages. 
There being in this clause of the constitution no express 
grant of the power of assessment, and no affirmative declara- 
tion of its existence, but a recognition of its existence by 
implication only, there is no case to which the maxim ex- 
pressio unius , etc., can legitimately apply. By providing 
against the abuse of a power the constitution by inevitable 
implication recognizes the existence of that power." 

Applying the principles laid down in this case to the 
present one, we have this result. Article VI. of the con- 
stitution contains a grant of power over the subject of edu- 
cation. It expressly authorizes the establishment of an 
efficient system of common schools, and all implications 
beyond the terms of the grant must be held to be excluded. 
The general assembly may pass laws necessary to establish 
and maintain public schools, but it is not authorized to 
establish private or parochial schools, provide an efficient 
system for them, or to interfere with their management. 
The same principle which is laid down in the case last cited 
is recognized in The State v. Frame, 39 0. S. 408, where it 
is said : " It has been claimed, because this last clause is 
in form a grant of power, that it confers the only power 
possessed by the general assembly over the subject of in- 
toxicating liquors, on the theory that, where specific power 



464 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

is given, it will be presumed to be exclusive and withdraw 
the subject from a mere general grant of power." 

In conclusion, upon this point, I call attention to the fact 
that Article VI. of the constitution is devoted to the subject 
of education, with that word made the title of the article. 
The language employed is the language generally used in 
making a grant of power. The provisions of the article do 
not recognize the power to establish a common school 
system as an existing one, but as one which would have no 
existence without the grant ; or if the power to establish 
such system should be held to be included in the general 
grant of legislative power, then the article by its enuncia- 
tions limits the subjects to which such power can extend, 
so that other subjects not mentioned in the article cannot 
be drawn within the scope of the power. The specific pro- 
vision that the "general assembly shall make such provis- 
ion ... as will secure a thorough and efficient system of 
common schools," withdraws from that body all other power 
to legislate upon the subject of private education, and con- 
sequently renders the law under discussion unconstitu- 
tional. 

. 3. I maintain that the law is unconstitutional so far as 
it violates the conscience rights of my client and his co- 
religionists. 

Upon this point I shall add nothing to what has been 
said by Judge Dunne. I refer to page 25 of his brief, et 
seq. (as found on page 330 — 343 of this volume). 

4. The law is unconstitutional because the penalties 
which it inflicts, and the method of procedure which it re- 
quires, are in several respects prohibited by the constitution. 
These obj'ections are so connected with the rest of the law 
that it is not probable that the law as a whole would have 
been enacted without them, and therefore the whole law 
must be held void. 

The penalties to which objection is made are found in 
sections 4 and 8 of the law as amended, 87 0. L, 325. 

Section 4 imposes the duty upon the parent of sending 



THE STATE OF OHIO VS, THE EEV. PATRICK F. QUIGLEY. 465 

to school his child under the age of 16 years, who has been 
discharged from a business, in order to be afforded an op- 
portunity to receive instruction, and fixes as a penalty for 
the violation of this section and section 1, that '* each parent 
shall on conviction be liable to a fine of not less than $5 
nor more than $20 for the first ofience, and not less than 
$20 for each subsequent offence, or to imprisonment for not 
less than one month nor more than three." 

Section 8 gives the court jurisdiction to try the child 
who refuses to attend school as a juvenile disorderly person, 
" and said court shall thereupon commit said child to some 
juvenile reformatory, provided that no child or children 
over 10 years old shall be sentenced by any court to a 
county children's home, and that where, in the judgment of 
the trustees of any such home, it shall be declared, by a 
resolution at a regular meeting by them held, that the char- 
acter of any child thus sentenced and kept at such home is 
vicious and so bad as to be detrimental and hurtful to the 
habits and good morals of other children at such home, 
said trustees are hereby authorized and empowered to 
remove such child or children to the Boys' Industrial 
School at Lancaster, Ohio, or the Girls' Industrial Home 
at Delaware, Ohio, as the case maybe ; nor sh^ll such child 
or children be kept at any such home beyond the period 
described in section 1, or until such child shall arrive at 
the age of 16 years, unless sooner discharged by the board 
of trustees of said reformatory or home." 

It will be seen from these provisions that section 4 
imposes upon parents who refuse to send their children to 
school under this act a penalty of imprisonment of not less 
than one month nor more than three ; and upon the chil- 
dren who refuse to attend school, confinement in reforma- 
tories or industrial homes, which may continue until they 
arrive at the age of 16 years. 

Section 11 provides that " mayors, justices of the peace, 
and probate judges shall have jurisdiction to try the 



466 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 

offences described in this act, and their judgment shall be 
final." 

Whether this section gives exclusive or concurrent juris- 
diction to these magistrates, it is unconstitutional inasmuch 
as it authorizes them to impose the penalty of imprison- 
ment for the conviction of a crime without giving the per- 
son charged the right of a trial by jury. 

So far as the imprisonment authorized to be imposed 
upon the parent is concerned, it being a part of the penalty, 
there can be no doubt under the principles laid down in 
Inwood V, The State, 42 0. S. 186, that the sections of the 
law relating to it and giving summary jurisdiction to the 
magistrates over it are unconstitutional. 

So far as the confinement inflicted upon the child as 
part of the punishment is concerned, I think the same 
principles ought to apply. It is an imprisonment inflicted 
as a penalty for conviction of a crime after a summary trial 
before magistrates. 

It is as severe an imprisonment as that inflicted upon 
the parent, and more severe and dangerous to liberty, 
because a child may be tried when 8 years of age and kept 
in confinement until he is 16 before he can obtain his dis- 
charge. 

Ought such an imprisonment be inflicted without a trial 
by jury ? If such a trial is guaranteed when the confine- 
ment may be one day, why should it be denied when the 
confinement can be for 8 years ? Can it make any differ- 
ence in principle that in the one case the parent is impris- 
oned in the county jail, and that in the other the child is 
confined in the county reformatory or the industrial home ? 

This question arose and was decided against the con- 
stitutionality of a law like this by the Supreme Court of 
Illinois in People v. Turner, 55 Illinois , 280. 

The court says : "If a father confined or imprisoned 
his child for one year, the majesty of the law would frown 
upon the unnatural act. . . . 

" Can the state, as parens Patrice^ exceed the power of 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 467 

the natural parent, except in punishing crime ? These laws 
provide for the ' safe-keeping ' of the child ; they direct 
his commitment, and only a * ticket of leave ' or the uncon- 
trolled discretion of a board of guardians will permit the 
imprisoned boy to breathe the pure air of heaven outside 
his prison walls, and to feel the instincts of manhood by 
contact with the busy world. The mittimus terms him ' a 
proper subject for commitment,' directs the superintendent 
to ' take his body,' and the sheriff indorses upon it, 'exe- 
cuted by delivering the body of the within-named prisoner.' 
The confinement may be from one to fifteen years, accord- 
ing to the age of the child. Executive clemency cannot 
open prison doors, for no offence has been committed. 
The writ of habeas corpus, a writ for the security of liberty, 
can afford no relief, for the sovereign power of the state, as 
parens patrice, has determined the imprisonment beyond 
recall. Such a restraint upon natural liberty is tyranny 
and oppression. 

** If, without crime, without the conviction of any offence, 
the children of the state are to be thus confined for the 
good of society, then society had better be reduced to its 
original elements and free government acknowledged a 
failure. 

** Nothing could more contribute to paralyze the youth- 
ful energies, crush all noble aspirations, and unfit him for 
the duties of manhood. Other means of a milder charac- 
ter, other influences of a more kindly nature, other laws 
less in restraint of liberty, would better accomplish the 
reformation of the depraved, and infringe less upon inalien- 
able rights. 

" It is a grave responsibility to pronounce upon the acts 
of the legislative department. It is, however, the solemn 
duty of the court to adjudge the law, and guard, when 
assailed, the liberty of the citizen. The constitution is the 
highest law ; it commands and protects all. Its declara- 
tion of rights is an express limitation of legislative power, 



468 THE STATE OF OHIO VS. THE KEA^ TATRICK F. QUIGLEY. 

and as the laws under which the detention is had are in 
conflict with its provisions, we must so declare." 

This decision is published in full in 10 Am. Law Beg. 
(U. S.), p. 336, accompanied by a note by Hon. Isaac F. 
Eedfield, heartily commending the view of the court. 

The circuit court in referring to this Illinois decision 
thinks that a different view upon the point decided had 
been approved by the supreme court of this state in Pres- 
cott V. The State, 19 0. S. 184, and Cincinnati House of 
Eefuge V. Eyan, 37 0. S. 197. In the first case the grand 
jury of Yan Wert County had certified to the court of com- 
mon pleas that one Prescott, being of the age of 14 years, 
was a fit person to be sent to the Eeform Farm. This was 
done under a section of the law quoted in the opinion of 
the court as follows : " If any accusation of the commission 
of any crime shall be made against any infant under the 
age of 16 years before any grand jury of the county, 
... and the charge appears to be supported by evidence 
sufiicient to put the accused upon a trial, the grand jurors 
may, in their discretion, instead of finding an indictment 
against the accused, return to the court that it appears to 
diem that the accused is a suitable person to be com- 
mitted to the guardianship of the directors of the House 
of Eefuge, and the court shall thereupon order such com- 
mitment." 

It was objected that this section was invalid because it 
deprived the defendant of his right to trial by jury. The 
court says : " The provision referred to in our state consti- 
tution relates to the preservation of the right of trial by 
jury and to the rights of the accused in criminal prosecu- 
tions. We do not regard this case as coming within the 
operation of either of these provisions. It is neither a 
criminal proceeding nor a proceeding according to the 
course of the common law, in which the right of trial by 
jury is guaranteed." 

But in the case of the children violating the law, the 
proceedings are called prosecutions, the hearing is a trial, 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 469 

the result is a conviction of crime, and the imprisonment 
is a penalty upon such conviction. It is a case in which at 
common law a jury was provided, and it seems to be clearly, 
in the view of the supreme court in the case cited, within 
the class of cases in which a jury is guaranteed by the con- 
stitution. 

The same remarks may be made of the case of House of 
Kefuge V. Ryan, 37 0. S. 197. It was a case of habeas cor- 
pus, in which the father sought to secure the custody of his 
children, who had been, without trial by jury, consigned to 
the keeping of the directors of the House of Eefuge, on the 
ground that they were without home and homelesSo 

The court said : *' The commitment is not designed as a 
punishment for crime, but to place deserted, neglected, and 
homeless children, and those who are in danger of growing 
up as idle and vicious members of society, under the guar- 
dianship of the public authorities for their proper care, and 
to prevent crime and paupers. . . . The authority of the 
state, as parens patrice, to assume the guardianship and 
education of neglected, homeless people as well as neglected 
orphans is unquestioned." 

Here the commitment is designed for the punishemnt 
of crime. The language of the statute is that " if said court 
shall determine that said child is a juvenile disorderly per- 
son, . . . such child shall he guilty of a misdemeanor, 
and said court shall thereupon sentence said child to some 
juvenile reformatory." 

Here are prosecution, trial, conviction, sentence, and 
punishment. The act of being a juvenile disorderly per- 
son is designated as a crime, tried and punished as such, 
and the case therefore is very different from the one in 37 
0. S., where homeless children are committed to a house 
of refuge, to be provided with a home and taken care of. 

I submit, therefore, that the provisions of this act provid- 
ing for the prosecution and punishment of parents and 
children for the violation of the duties they impose, are 



470 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

unconstitutional, because they deprive them of a trial by 
jury, guaranteed to them by the constitution. 

The only question remaining is, what is the effect of 
these unconstitutional provisions upon the rest of this act? 
The rule on this subject is stated in The State V. Pugh, 43 
O. S. 124 : " It is a familiar principle that when part of a 
legislative act is found to be unconstitutional, and another 
part which, standing alone, would be free from constitu- 
tional infirmity, are so connected in the general plan and 
object of the act that it is highly improbable that the Legis- 
lature would have enacted the one without the other, the 
one is so affected by the infirmity of the other that both 
must fall. 

"... Looking at the entire act, it is highly improb- 
able that the Legislature would have enacted the provision 
for redistricting the city without those for its reorganiza- 
tion. . . . The conclusion is inevitable that so much of 
the act as provides for redistricting the city is also in- 
valid." 

The act under consideration was entitled, " An act to 
compel children under 14 years of age to attend school 
a certain length of time each year." 

The chief sanctions by which the objects set forth in 
the title were intended to be accomplished are the penal- 
ties imposed upon the parents and children for the viola- 
tion of the provisions of the act. Without them the law 
would be incapable of enforcement, and it seems highly im- 
probable that the Legislature would have enacted the other 
provisions for carrying the law into execution without those 
for compelling the parent and child to obey them. 

If the latter are invalid, as I have maintained, the con- 
clusion is inevitable that the whole law must fall for, that 
reason. 



On behalf of the state, Mr. Richards, Attorney-General 
for the State of Ohio, filed the following printed brief : 



Iln tbe Supreme Court of tbe State of ©bio* 



PATRICK F. QUIGLEY, 

Plaintiff in Ebkob, 

THE STATE OF OHIO, 

Defendant in Ebroe. 



Brief for 
Defendant in Error, 



STATEMENT OF THE CASE. 

On the 15th of April, 1889, the Legislature passed an 
act entitled "An act to compel children under fourteen 
years of age to attend school a certain length of time each 
year " (86 0. S. 333), commonly known as The Compulsory 
Education Law. 

Section 1 of this act provides that all parents, guardians, 
and other persons who have care of children, shall instruct 
them or cause them to be instructed in spelling, reading, 
writing, English grammar, geography, and arithmetic ; and 
every parent, guardian, or other person having charge of 
any child between the ages of eight and fourteen, shall be 
required to send it to a public or private school for a period 
each year of not less than twenty weeks in city districts and 
not less than sixteen weeks in other districts, unless the 
child is excused from such attendance by the superintendent 
of the public, private, or parochial schools in cities, or the 
board of education in other districts, because its physical 
or mental condition prevents such attendance, or because 

471 



472 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

it is taught at home by some qualified person in such 
branches as are usually taught in primary schools. 

Section 2 forbids, under heavy penalties, the employment 
of any child under fourteen by any person or corporation 
while the schools are in session, unless the parent furnish 
certain required proof that the child has completed the 
olementary course of education prescribed in the first 
section. 

Section 3 prohibits, under similar penalties, the employ- 
ment of minors between fourteen and sixteen years of age 
who cannot read and write the English language, unless 
they attend school at least one half of each day, or a night 
school, or take private instructions from some qualified 
teacher, until they are certified by the superintendent of 
schools as able to read and write the English language. 

Section 4 requires the parent, guardian, etc., under 
penalty, to send the child under sixteen, who has been dis- 
charged from employment to get the schooling prescribed 
in section 3, to some public or private school until it has 
acquired the necessary instruction. 

Section 5 provides that children of the school age who 
are habitual truants from school, or, while at school, in- 
corrigible, vicious, or immoral in conduct, shall be deemed 
"juvenile disorderly persons " and subject to the provisions 
of the act. 

Section 6 provides for the appointment of a truant officer 
vested with police powers, with authority to enter factories, 
workshops, etc., where children may be employed, and do 
what may be necessary to assist in the enforcement of the 
act. 

Section 7 provides for the daily reports of truant officers 
and a record of their transactions. 

Section 8 sets forth in detail the duties of truant officers. 
They are to examine into cases of truancy, to warn truants, 
their parents or guardians, of the consequences of truancy, 
to notify the parent or person in charge oi^ any juvenile 
disorderly person that he or she is not attending school, 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 473 

and to require the parent to cause the child to attend some 
recognized school within five days from the notice. If the 
parent wilfully neglect to comply with such notice and 
cause the child to attend school, the truant officer is required 
to make complaint before a proper court, and on conviction 
the parent or guardian is punishable by a fine of not less 
than &Ye nor more than twenty dollars, and bond may be 
required to be given by the parent conditioned that he shall 
cause the child to attend some school as prescribed by the 
act. If the parent or guardian prove his inability to cause 
the child to attend school, he shall be discharged, and the 
court on complaint that the child is a juvenile disorderly per- 
son, as described in section 5, shall hear the charge, and if 
it determine the child is a juvenile disorderly person within 
the meaning of this act, " such child shall be deemed guilty 
of a misdemeanor, and said court shall thereupon sentence 
said child to some juvenile reformatory or children's home 
until such child shall arrive at the age of sixteen years, 
unless sooner discharged by the board of trustees ; " pro- 
vided that the sentence may be suspended in the discretion 
of the court for such time as the child may regularly attend 
school and properly deport himself. If the parent fail to 
cause a juvenile disorderly person to attend school, com- 
plaint against the juvenile disorderly person may be made, 
tried, and determined as where the parent pleads inability. 
But no child under nine shall be sent to any juvenile reform- 
atory or children's home. 

Section 9 imposes upon officers the duty of instituting 
proceedings against any parent, guardian, etc., or corpora- 
tion violating the act, but provides that the law shall not 
be operative " in any school district where there are not 
sufficient accommodations to seat children compelled to 
attend school under the provisions of this act." 

Section 10 permits the suspension of the act, or, pub- 
lic assistance, in certain cases where the child is dependent 
on its own labor for support, or others unable to work 
are dependent on it. 



4% THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

Section 11 (for a violation of wliicli this prosecution 
was begun) provides : " That it shall be the duty of all 
principals and teachers of all schools, public and private, 
to report to the clerk of the board of education of the 
city, village, or township in which the schools are situated, 
the names, ages, and residence of all pupils in attendance 
at their schools, together with such other facts as said clerk 
may require in order to facilitate the carrying out of the 
provisions of this act, and the said clerk shall furnish 
blanks for said purpose, and said reports shall be made in 
the last week of September, December, February, and 
April in each year." 

Section 12 makes officers and agents of a corporation 
violating the act, who are cognizant of such violation, liable 
as individuals. 

Section 13 (another section directly involved in the 
case) provides : *' Any person or officer mentioned in this 
act, and designated as having certain duties to perform in 
the enforcement of any of its provisions, neglecting to per- 
form any such duties, shall be liable to a fine of not less 
than twenty-five dollars and not more than fifty dollars for 
each and every offence." 

Section 14 is the repealing section. 

I have given thus at length the provisions of the com- 
pulsory law of this state, to advise the court of the scope, 
extent, and purpose of this most important measure. 

Three acts amending certain sections of the above act 
have been passed — namely, the act of April 2, 1890 (87 0. S, 
142), which amends sections one, three, four, six, seven, 
eight, and eleven ; the act of April 25, 1890 (87 0. S. 316), 
which amends section one ; and the act of April 25, 1890 
(87 0. S. 325), which amends sections six, eight, eleven, and 
thirteen. 

Section one, therefore, as it stood at the beginning of 
this prosecution is as amended April 25, 1890 (87 0. S. 
316), and contains the provisions I have recited, with the 
additional one that youth between eight and sixteen, not 



THE STATE OF OHIO VS. THE REV. PATEICK F. QUIGLEY. 475 

engaged in regular employment, must attend school for the 
full term. 

Sections three, four, and seven, as they now stand, ap- 
pear in 87- 0. S. 143, but are changed in no substantial 
particular. 

Sections six, eight, eleven, and thirteen, as they now 
stand, are to be found in 87 0. S. 325. 

The amendment in section six is simply verbal. 

The amendment in section eight inserts the additional 
provision that no child over ten shall be sentenced to a 
county children's home, and that where the trustees of 
any such home determine that any child sent to it under 
the act is too vicious and bad to be kept there, they may 
remove it to the Boys' Industrial School or the Girls' 
Industrial Home. 

To section eleven the amendment adds ; '* And it shall 
be the further duty of said principals and teachers to re- 
port to the truant officer, the superintendent of schools, or 
the clerk of the board of education, all cases of truancy or 
incorrigibility in their respective schools as soon after these 
offences have been committed as practicable." 

To section thirteen the act of April 25, 1890, adds : " And 
mayors, justices of the peace, and probate judges shall 
have jurisdiction to try the offences described in .this act, 
and their judgment shall be final." 

Prior to the last week of April, 1890, the clerk of the 
board of education of Toledo, Ohio, acting under the pro- 
visions of section eleven, furnished, through the truant 
officer, the proper blanks to the plaintiff in error, the Eev. 
Patrick F. Quigley, a Catholic priest in charge of St. Fran- 
cis de Sales parish of such city,* and by virtue of his 
pastorate the principal of the parochial schools of the 
parish, and requested him to report the names of the 
pupils of such schools, the date of birth, the number of 
days present, the number of days absent, the number of 
days truant, and their residence. 

* The blanks were furnished May 2, 1890. See pp. 9 and 10. 



476 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

Doctor Quigley received the blanks but refused to make 
tlie report required by the law. 

The truant officer describes the interview (Eecord, p. 
43) : " He said ' he would have nothing to do with it ; that 
we had no right to interfere in that mode ; that he didn't 
want me to trouble him in their parish whatever.' I ex- 
plained to him that there had been a law passed and I 
would expect him to comply. He kind of laughed over the 
matter, and said : ' We will not comply ; we will fight you ; 
we have control over our school, and we don't want you in 
our parish.' He told me that we were robbers and thieves, 
and had been robbing them for years. I told him we had 
nothing to do with that, and probably it would be a long 
time before there would be a change. He told me that we 
didn't know his strength." Again, p. 44: "He had a great 
many things to tell me concerning the way things were 
going in Wisconsin and Iowa, and he thought it would 
soon be that way here. He claimed that the people were 
beginning to straighten out and understand themselves, 
and, with reference to this robbery, it would be checked. 
He said : 'I want you to commence this as quick as you 
can. Crack your whip ; I will fight you. Commence it as 
quick as you can ; you can't get at it too quick.' That was 
the language." ^ 

For this wilful refusal to make the reports required by 
law, the plaintiff in error was indicted at the April term, 
1890, of the court of common pleas of Lucas County, and in 
May, 1891, was tried and convicted. A motion in arrest of 
judgment was argued before Judge Pugsley and overruled. 
His decision in support of the jurisdiction of the common 
pleas, and the fact that the neglect of the principal of a 
parochial school to make the report required by section 
eleven was an offence against the act, is printed in the 
Weekly Law Bulletin of August 24, 1891 (vol. 26, p. 129). 

To reverse the judgment of the common pleas, error 

* Those who have read the law on evidence know what legal value 
there is in such " evidence." Those who know Dr. Quigley need not be 
told that at least the grammar of the above is spurious. 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 477 

',iras prosecuted to the circuit court. The decision of the 
circuit court (Scribner, Hajnes, and Bentlej, JJ.), rendered 
bj Judge Haynes, is found in the Weekly Law Bulletin of 
December 14, 1891 (vol. 26, p. 653), and preceding num- 
bers. The opinion is an elaborate one covering some 
twenty pages and considering in detail the points raised. 

The circuit court first sustained the common pleas in 
holding that the facts charged in the indictment consti- 
tuted an offence which that court had jurisdiction to try. 

It then sustained the proceedings by which the struck 
jury which tried the case was impanelled. 

It then proceeded to consider the constitutionality of 
the compulsory education law, quoting liberally from the 
charge of Judge Pugsley to the jury, which appears in full 
in the record. The following objections to the constitu- 
tionality of the statute were passed upon and overruled : 
first, because it interferes with the parental authority and 
right to direct the education of children ; and second, be- 
cause the penalties visited upon juvenile disorderly per- 
sons are unconstitutional. 

The court next took up the point urged against the indict- 
ment, that it charged the defendant below as principal "in 
a certain school," that is, of a public or private school, which 
a parochial school is not ; and held that a parochial school 
is a private school within the meaning of section eleven. 

As to the point made under section nine that the law shall 
not be operative in any district lacking sufficient seating- 
capacity for all children required to attend school under its 
provisions, the court held that this meant seating capacity 
for children desiring to attend the public schools, leaving 
out those attending private or parochial schools, and, as a 
matter of fact, there was seating capacity in Toledo at the 
time for all children of school age. 

Finally, as a matter of fact, passing upon the evidence, 
the court held it was proven that the defendant was the 
principal of the schools in question, and that the verdict 
was sustained by the evidence. 



478 THE STATE Of OHIO VS. THE REV. PATRICK F. QUIGLEY. 

ARGUMENT. 

The questions arising on the record that require discus- 
sion in answer to the briefs of Mr. Huxd and Judge Dunne, 
taking them in the order I shall consider them, relate — 

1. To the constitutionality of the compulsory education 
iaw. 

2. To the jurisdiction of the common pleas to try and 
punish the offence upon indictment. 

3. To the sufficiency of the indictment. 

4. To the regularity of the proceedings on the trial. 

HISTORY OF COMPULSORY EDUCATION IN OHIO. 

At the head of the educational system of Ohio stands 
the state commissioner of common schools. During the last 
fifteen or twenty years we have had as commissioners able 
educators representing both political parties, and hence, it 
is to be fairly presumed, the whole people. What these 
men have said officially as to the need of compulsory educa- 
tion here may throw light on the necessity of the law now 
on trial and the policy and purpose of its enactment. 

In January, 1875, Thomas W. Harvey, reporting through 
Governor Allen to the general assembly, said (School 
Eeport, 1874, p. 47) : " There were in the state at the be- 
ginning of the school year 991,708 youth of school age. Of 
these 707,943 were enrolled in the schools, and the per 
cent of their average daily attendance was 80.11. Indif- 
ference to school privileges and advantages is confined to 
comparatively a small class, but this is a dangerous class. 
Many absentees are truants. They are the bane of our 
schools. From them the army of the vicious and depraved 
receives most of its recruits. They are not only themselves 
growing up in ignorance, forming habits of idleness and 
dissipation, and becoming adepts in crime, but they entice 
others to follow their evil example. Law-abiding citizens 
look upon their increase with aiixious concern for the future 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 479 

welfare of society and the country, and inquire whether 
the state has not the power to enforce their attendance at 
school. . . . The state has the right to provide for the 
education of its youth ; it must necessarily have the right 
to enforce obedience to such laws as will give efficiency to 
the means provided." After a further discussion Mr. Har- 
vey recommends the enactment (1) of laws for the preven- 
tion of truancy, with a truant marshal ; (2) laws against 
loitering by children under a certain age ; and (3) laws 
against the employment of uneducated children in mines, 
factories, etc. 

The next year Commissioner Charles S. Smart, again 
calling attention to the percentage of illiteracy and the 
irregularity of school attendance, renewed the recommenda- 
tion of the department for a compulsory education law. 
He says (School Eeport, 1875, p. 65 et seq.) : " The children 
of our country are to become powers for good or ill, and it 
is a duty the parent owes his child, and not alone his child, 
but society as well, that it be educated. If a parent will 
not voluntarily perform this duty, should he not in the 
interest of the child and society be compelled to perform 
it ? . . . The people are compelled to make school provis- 
ion for all. When this is done, why hesitate to compel 
the attendance of children growing up in evident culpable 
idleness or vice, whose education is neglected by their par- 
ents, and for whom, as for other children, this expenditure 
is made ? . . . The parent's right to educate his child in 
any direction that will make of him a good and useful cit- 
izen should be recognized and respected, but if the parent 
refuses or neglects to do it, the state for its own protection, 
for the welfare of society, and for the good of the child, 
should see that this duty is performed." 

In consequence of these recommendations, the act of 
March 20, 1877 (74 0. S. 57), was passed, which was after- 
wards incorporated into the Revised Statutes, as sections 
4023 to 4029. This act required parents to send children 
between eight and fourteen to a common school at least 



480 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

twelve weeks a year, unless excused for certain reasons, 
and made it unlawful to employ children under fourteen, ex- 
cept under certain conditions. The nature of the excep- 
tions incorporated in this act, the easy excuses for non- 
compliance afforded, and the lack of proper machinery to 
secure its enforcement, made this law a dead letter. 

Commissioner Smart says of it (School Keport, 1877, p. 
104) : *^ The original bill ' to secure to children the benefits 
of an elementary education ' was so amended as to render 
the act as it now stands virtually inoperative." 

Commissioner J. J. Burns (School Keport, 1878, p. 63), 
after puncturing the futility of the law of 1877, urges 
further legislation in these words : " While we are estab- 
lishing reform schools for those who have started in the 
way to their own ruin and have donned the uniform of the 
enemies of civil society, it would be a heavenly importation 
to provide some way to rescue those who are yet only 
lingering around the camp." 

Two years later Commissioner Burns (School Eeport, 
1880, pp. 42, 43) appeals in strong terms for further legis- 
lation : " Organized society, through its representatives, 
has the same right and the same reason for legislating on 
this subject that it has to make laws to punish crime or to 
regulate commerce. It aims to secure its own perpetua- 
tion by preparing the youth to take their place as partners 
in the firm. 

" Where all are rulers, education should be universal — 
the extent to which it should be carried depending on the 
formally expressed will of the society itself." 

In 1892 D. F. De Wolf was Commissioner. In appendix 
" r," p. 506, to the school laws published in the report of 
that year, is a capital discussion of the right and duty of 
the state not only to educate, but to make education com- 
pulsory. " The founders of the Eepublic," says the writer, 
" knew^ that popular government implied universal educa- 
tion. They advocated the furnishing of the means of ele- 
mentary instruction to every individual. The patriotic ad- 



THE STATE OF OHIO VS. THE REV. PATRICK E. QUIGLEY. 481 

dresses of Story and Webster, of all the fathers, teem with 
arguments on this subject. They were convinced that self- 
government was impossible for people who could not be 
raised to these conditions. Through reverence for the con- 
victions of these great men, as well as from their own sense 
of the necessities of the situation, our legislatures have 
given us the public school system. ... To those who 
shrink from the notion of compulsion it seems only neces- 
sary to say that our school system already involves com- 
pulsion of taxpayers of the most rigid character, in that it 
brooks no refusal to pay large sums of money for its sup- 
port, and prevents in all but a few wealthy communities 
the building up of efficient private schools where individual 
ideas may be realized in education." 

Following these words as to the need of an effective 
compulsory education law, which, through the annual school 
reports, reached every nook and corner of the state, and in 
response to a general sentiment and practically universal 
demand, the compulsory education law of 1889 ivas passed. 
In each branch of the general assembly ^ every member present 
voted for this bill and not one member voted against it. 

Of this law, the lamented John Hancock, then Commis- 
sioner of Common Schools, and its promoter, who was not 
only a wise educator but a noble man, said (School Report, 
1889, p. 2) : 

"The most striking advance-step in school legislation 
made in Ohio within the last quarter of a century was the 
enactment last winter of the compulsory education law. 
This law is based on the great humanitarian idea that 
youth is the time for growth and to train for the duties of 
life, not to be spent in vicious idleness nor hard drudging 
labor. That a bill so wise and beneficent in all its features 
should have passed both branches of the assembly by a 
unanimous vote is a matter for congratulation, and that it 
is receiving a vigorous support from the people speaks well 
for their intelligence." 

The next report of Commissioner Hancock contains the 



482 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

result of one year's trial of the law (School Eeport, 1890, 
p. 9). Reports from all over the state showed that not only 
was the law satisfactory, but it was regarded with almost 
universal favor, and there was little or no opposition to its 
enforcement. " In one or two instances, objection to the 
law has come from the authorities of parochial schools, 
though in most cases, so far as my knowledge extends, 
these authorities have yielded assent to the law and have 
availed themselves of its provisions to gather in from the 
streets the truants belonging to their schools. That the 
law is liberal toivards this class of schools cannot he success- 
fully denied. It makes no attempt to force any man's conscience. 
If the child is only in school, tvhether it he in a puhlic, a paro- 
chial, or a private school, the laiv is satisfied. It declares no 
preference hetween classes of schools. It says the child must he 
educated; where it is to he educated is left to the free election of 
the parent.'' 

But Doctor Quigley opposes ; and to this opposition 
may be ascribed more than an individual objection to the 
law. It may be well, therefore, to call attention to the fact 
that the very record in this case (p. 85) shows that the Rev. 
T. P. McCarthy, a priest of the same faith as Dr. Quigley, 
was a witness on the trial below. Father McCarthy was 
pastor at that time of the Immaculate Conception parish 
of the Roman Catholic Church in Toledo, and as principal 
of the parochial schools of such parish made the report 
required by the law, which Doctor Quigley refused to make. 

Let me conclude this branch of discussion by saying 
that the law of 1889 was passed by a republican legislature — 
unanimously passed ; the amendments of 1890 were passed 
by a democratic legislature, and with the same unanimity. 
There is no politics in this law. 

COMPULSORY EDUCATION IN OTHER STATES. 

One might infer from the statements in the briefs on the 
other side, that the Ohio law enforcing the attendance of 
children at some school is unusual, exceptional, and hence 



THE STATE OF OHIO VS. THE KEY. PATKICK F. QUIGLEY. 483 



objectionable legislation. Such is not the case. The 
report of the Commissioner of Education of the United 
States for 1888 and 1889 (p. 470 et seq.) contains a detailed 
statement, covering sixty pages of closely printed matter, of 
the compulsory attendance laws of the various states. It is 
impracticable to give even a brief abstract of the provisions 
of the laws in other states. I content myself with saying 
that from this official report it appears that in March, 1891, 
compulsory education laivs ivere in operation in tioentyseven 
states and territories of the Union. 

Commissioner Harris says : " The principle of com- 
pulsory education is steadily gaining ground. Steps in 
advance are being taken here and there all along the line. 
Since 1886 no less than sixteen states or territories have 
either enacted laws for the first time or have made their 
former laws more stringent. The arguments and discus- 
sions of thirty years or more have been gradually silencing 
opposition, and public sentiment is slowly crystallizing in 
the direction of requiring by law all parents to provide a 
certain minimum of school instruction for their children. 
This tendency is unmistakable." 

The following table shows the dates at which the 
several states and territories first enacted compulsory 
education laws of universal application, excluding the 
early laws of Massachusetts and Connecticut : 



state. 


Year. 


state. 


Year. 


IMassachusetts 


1852 
1864 
1867 
1871 
1871 
1871 
1873 
1872 
1873 
1874 
1874 
1874 
1875 
1875 


Wvominsr 


1876 


District of Columbia 


Ohio ... 


1877 


Vermont 


Wiscousiu 


1879 


New Hampshire 


Rhode Island 

Illinois 


1879 


Michigau 


1883 


Washington 


Dakota 


1883 


Conuecticut 


Montana.. 

Minnesota 

Nebraska 


1883 


New Mexico 


1885 


Nevada 


1887 


New York 


Idaho 


1887 


Kansas 


Colorado 


1889 


California 


Oregon 


1889 


Maine... 


Utah 


1890 


New Jersey 











484 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

Judge Dunne, in his brief, makes mucli of the opposi- 
tion to the Wisconsin law, quoting liberally from an article 
by ex-Senator Vilas, in the Forum, attacking that law, just 
as if the Wisconsin law was similar to the Ohio law and 
was attacked for the same reason and on the same ground. 
The truth is (see report of U. S. Commissioner of Educa- 
tion, 1888 and 1889, pp. 507 to 512) that the Wisconsin 
law of 1889, known as the " Bennett Law," was obnoxious, 
not because it provided that all children between certain 
ages must attend school, but because it commanded that the 
English language only must be taught in all the schools. Nat- 
urally this provision was highly offensive to foreigners of 
whatever religious faith. The Lutheran Synod of Missouri, 
Ohio, and other states, while denouncing and pledging 
itself to oppose at the polls in Wisconsin every candidate 
and party which had not publicly announced its intention 
to do all possible for a repeal of the obnoxious sections of 
the Bennett Law, yet declared : " Li case parents neglect 
their duty to educate their children, the state is justified in 
compelling them by appropriate legislation to the discharge 
of such duty." 

The following resolution was adopted by the depart- 
ment of superintendence of the National Educational 
Association at its Philadelphia meeting (February, 1891). 
It will be observed that while the necessity of an acquaint- 
ance with the English language is upheld, that distinguished 
body did not commit itself to an approval of the extreme 
principles of the Wisconsin law : 

" In our free Kepublic the state is merely the expres- 
sion of the people's will, and not an external governmental 
force ; and taxes are levied on property for the support of 
schools because universal education is indispe'nsable to the 
perpetuity of the state. Education, therefore, including 
an acquaintance with our national language, becomes the 
rightful inheritance of every child. It is the right and 
the duty of the state not only to provide for this education, 
but also to insist that no child be deprived of that priceless 



THE STATE OF OHIO VS. THE REV, PATRICK F. QUIGLEY. 485 

iieritage. The proper exercise of this right does not 
restrict the freedom of parents in the education of their 
children, except in the narrow limits of this necessary 
purpose." 

The ground of the opposition in Wisconsin to the 
Bennett Law is further and most explicitly shown by the 
subsequent action of the Legislature of that state. In 
the spring of 1891 the Wisconsin Legislature repealed the 
Bennett Law by a large majority. But a new compulsory 
education law, which received the support of both political 
parties, was soon after passed and was approved April 6. 
In this law the provision that required instruction should 
be in the English language does not appear. 

So much for compulsory education in the United States. 
I pass now to compulsory education in foreign countries. 

Mr. Hurd (his brief, p. 29)"^ says that, so far as he is 
advised, there is no system in England to-day providing 
for public education, meaning, ergo, there is no compulsory 
education there ; and Judge Dunne centres his attack on 
Germany and Switzerland, as if these were the only coun- 
tries in Europe in which the necessity of compulsory edu- 
cation is recognized and its operation seriously enforcedo 

In 1865 Matthew Arnold, whom Chief-Justice Coleridge, 
when in this country a few years ago, said was distinctly 
the most distinguished Englishman living, made an in- 
vestigation of the schools and universities on the Continent, 
and put the result of his investigatioii.-^ in a book. In the 
preface to that book he said : " It may be broadly said that 
in all the civilized states of continental Europe education is 
compulsory, except in France and Holland. The example 
of the Continent proves that, in general, where popular edu- 
cation is most prosperous, there it is also compulsory. 
The compulsoriness is, in general, found to go along with the 
prosperity, though it cannot be said to cause it ; but the 
high value among the people for education, which leads to 
its prospering among them, leads also, in general, to its 

* See Page 456, above. 



486 THE STATE OF OHIO Vn. THE KEV. PATRICK F. QUIGLEY. 

being made compulsory. ... I believe that if ever our 
zeal for the cause mounts high enough in England to make 
our popular education bear favorable comparison, except 
in the imagination of popular speakers, with the popular 
education of Russia and Switzerland, this same zeal will 
also make it compulsory." 

And " this same zeal," due largely to Matthew Arnold's 
work, did make education compulsory in England. I quote 
from Justice Stephen's History of the Criminal Law of 
England (vol. 3, p. 264) : 

** The legislation which has provided a general system 
of education accessible to all, and to some extent compul- 
sory upon all, is modern. It is all founded upon the Ele- 
mentary Education Act of 1870 (33 and 34 Yic, c. 75). 
This act is made compulsory by provisions which render 
parents liable to fines for not sending their children to 
school, and which impose penalties upon employers of 
labor who take children into their employment otherwise 
than upon the terms which the act allows. 

" There are also provisions in the Industrial Schools 
Act of 1866 (29 and 30 Vic, c. 118, ss. 14-19) which enable 
justices to send certain classes of children to schools 
which partake to some extent of the character of prisons. 

" The importance of these provisions, simple and short 
as they are, needs no remark. They form the sanctioning 
clauses of one of the most characteristic and most impor- 
tant sets of laws enacted in our days." 

The act of 1870, Mr. Forster's act, referred to by Justice 
Stephen, was supplemented by the Elementary Education 
Act of 1876, known as Lord Sandon's Act, to compel the 
attendance of children at schools in districts where there 
are no school boards ; and again by the act of 1880, called 
Mr. Mundella's Act, which made compulsory attendance 
universal. 

In Scotland education was made compulsory by the act 
of 1872, amended in 1878 and again in 1883. 

One illustration of the result of this legislation in Scot- 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 487 

land will suffice. In 1873 tlie population of Glasgow was 
513,665 ; in 1887, 534,017. This was but a slight increase 
in population. But owing to the compulsory education 
law, the number of children in attendance at school in- 
creased from 43,803 in 1873 to 70,239 in 1887~an increase 
of 26,436. 

As to the result in England and Wales, the proportion 
of children on the rolls of efficient schools to the popula- 
tion was in 1870 7.66, while in 1886 it had reached 16.34. 

On the Continent, education is compulsory, in Austria 
between the ages of six and fourteen ; in Bavaria, from six 
to thirteen ; in France, from six to thirteen (for four ab- 
sences of half a day in a month the parent is summoned 
before the local school committee ; for repeated absences, 
he may be fined fifteen francs or sent to jail for five days) ; 
in Hungary, from six to twelve ; in Italy, from six to nine ; 
in Norway, from seven until they are confirmed ; in Prus- 
sia, from four to fourteen ; in Saxony, from seven to fifteen ; 
in Sweden, from seven to fourteen ; in Berne, from six to 
fifteen ; in Geneva, from six to fifteen ; in Neuchatel, from 
seven to sixteen ; in Tessin (Switzerland), from six to four- 
teen ; in Vaud (Switzerland), from seven to sixteen ; in 
Grisons (Switzerland), from seven to fifteen ; in Zurich, 
from six to sixteen ; in Wurtemberg, from seven to four- 
teen. 

In the colonies of Great Britain education is compul- 
sory as follows : in British Columbia, from seven to twelve ; 
in New Zealand, from seven to thirteen ; in Nova Scotia 
from seven to twelve ; in Ontario, from seven to thirteen ; 
in Prince Edward Island, from eight to thirteen ; in 
Queensland, from six to twelve ; in South Australia, from 
seven to thirteen ; in Tasmania, from seven to thirteen ; in 
Manitoba, from seven to twelve. 

These facts I have taken from a report on compulsory 
education in Canada, Great Britain, Germany, and the 
United States, made in 1891 by George W. Koss, Minister 
of Education of Ontario. 



488 THE STATE OF OHIO VS. THE REV. PATEICK F. QUIGLEY. 

The condition of education in European countries is 
strikingly shown by a chart on page 75, of the report of the 
U. S. Commissioner of Education for 1888 and 1889. From 
this chart it appears that the ratio of children in school to 
population is in the great powers as follows : in Germany, 

18.4 ; Great Britain, 16 ; France, 14.7 ; Austria-Hungaria, 
12.3 ; Italy, 10.5 ; Eussia, 3.1. 

And in the lesser powers thus : in Switzerland, 17.5 ; 
Sweden, 15.1 ; Norway, 13 ; Netherlands, 14 ; Denmark, 

11.5 ; Belgium, 10.6 ; Spain, 10.6 ; Greece, 6.4 ; Portugal, 5 ; 
Turkey, 5.1 ; Servia, 2.7, and Eoumania, 2.4. 

These figures need no comment. They speak for them- 
selves. The gauge of progress, of civilization, is in them. 

While the expediency of a compulsory education law is 
a matter for the legislature, I am inclined, before leaving 
this branch of the subject, to notice briefly the attack made 
by Judge Dunne upon the policy of the law. Judge Dunne 
denies, in the first place, that popular education is neces- 
sary for the safety or perpetuity of the state, and, in the 
next place, that the secular instruction given in the public 
schools is for the general good. This, of course, is an 
attack upon the theory of our institutions, and upon the 
spirit of the constitution itself. On page 39"^ Judge Dunne 
says it is not necessary for the maintenance of the public 
that all have intelligence to discharge properly their duty 
as citizens; it is enough if a majority have. This is the 
old aristocratic argument, that toil is for the many and rule 
for the few. On pages 347, 348, and 349 he denies that igno- 
rance and vice go hand in hand, and cites statistics to show 
that, notwithstanding education, crime has increased in 
Massachusetts, in Germany, and other states where com- 
pulsory attendance is in for<?e. I reply that if crime has 
increased, the more reason is there that education should 
be extended. The greater the wealth of a state and the 
thicker its population, the harder becomes the fight for 
subsistence among the poor and ignorant ; the stronger the 
temptation to vice, the greater the opportunity for crime. 
^ See p. 334, above. 



THE STATE OF OHIO VS. THE BEV. PATEICK F. QUIGLEY. 489 

The problems of these days are not those of the earlier and 
simpler times. In some way vice must be checked and 
crime prevented. For statistics upon the relation between 
illiteracy and crime, I refer to the report of the bureau of 
education at Washington, 1881. Extracts from these re- 
ports, with other pertinent statistics, are to be found on 
page 83 et seq. of the report on compulsory education by 
Mr. Eoss, Minister of Education of Ontario. The bureau 
of education took the reports of the penitentiaries and 
prisoners of some twenty states, ascertained the number of 
illiterate persons who were criminals, and struck the ratio 
between the number of illiterate criminals as compared 
with the entire illiterate population of the state, and also 
the ratio between the educated criminals as compared with 
the educated people of the state. The following were the 
conclusions reached : 

(1) That about one sixth of all the crime in the country 
is committed by persons wholly illiterate. 

(2) That about one third of it is committed by persons 
practically illiterate. 

(3) That the proportion of criminals among the illiterate 
is about ten times as great as among those who have been 
instructed in the elements of a common school education or 
beyond. 

Eev. Charles L. Brace, at the head of the Children's Aid 
Society of New York, states that nearly one third of the 
crime in New York is committed by the illiterate six-hun- 
dredth part of the population. He adds : " Very great 
criminality is, of course, possible with high education ; but 
in the immense majority of cases a very small degree of 
mental training or intellectual tastes is a preventive of 
idleness and consequent crime." 

The late Dr. E. C. Wines, one of the highest authorities 
on the subject under consideration in this or any other 
country, in his great work on the " State of Prisons," pre- 
sented his conclusions in the following words : " Taking the 
entire mass of the inmates of all classes of prisons in the 



490 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

northern and western states, tlie proportion of those wholly 
illiterate to those that have received a moderate degree of 
education, often very moderate indeed, may be stated with 
substantial correctness at about one third. In the southern 
states the proportions are just about reversed, being two 
thirds illiterate to one third partially educated. The num- 
ber of prisoners who have received a superior education in 
either section is small indeed." 

In the face of facts like these, can any one claim that 
education does not tend to prevent crime ? 

CONSTITUTIONALITY OF THE LAW. 

The constitutionality of the law is impugned on four 
grounds : 

(1) Because it interferes with the right which it is as- 
serted that the parent has by natural law to educate his child. 

(2) Because it violates the conscience rights of the 
plaintiff in error and his co-religionists. 

(3) Because the constitution has not conferred upon the 
state the right to educate the child, but merely to afford 
means to aid parents to do so. 

(4) Because the penalties which it inflicts, and the 
method of procedure which it requires, are in several re- 
spects prohibited by the constitution. 

1. Are the natural rights of parents infringed ? 

Mr. Hurd (brief, p. 22)^ maintains, by the natural law the 
parent has the right to educate the child, an inalienable 
right which cannot be surrendered, nor taken away, nor 
abridged by society ; a right above constitutions and law ; 
and he refers to the learned and exhaustive argument of 
his associate. Judge Dunne, upon this point. 

Judge Dunne's brief being 242 pages long, cannot, of 
course, be adequately abstracted nor in detail answered. 
His line of argument, however, is this : That by the natural 
law the parent has the sole and exclusive right to educate 
the child. This natural law is the law of God, and what 
See p. 464, above. 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 491 

the law of God is, it is for the Church of Rome to say. His 
brief, therefore, is devoted to a discussion of the author- 
ities of that Church, and an attempt to prove by them, that 
the state has no right to educate, and no right to interfere 
and compel the parent to educate ; in other words, that the 
Catholic Church is opposed to the common school system 
and to compulsory education laws. For the nature of the 
authorities relied u]3on by Judge Dunne, I refer the court 
to pages 226 and 227 of his brief.* 

Natural and inalienable rights, those which, by the laws 
of their being, all men have, are rights of general recogni- 
tion which hardly need to be established hj argument. 
Moreover, when the Church of Rome takes a position upon 
any measure of the public importance of this, it is not long 
in making its position unmistakably plain. The length of 
•Judge Dunne's argument proves its weakness. It shows 
on its face that he is not authorized to represent his Church 
in the position he takes. Apparently, it is not so much 
intended to vindicate and defend, as to propagate and ex- 
tend, opposition to public education and compulsory 
attendance laws. If the Catholic Church has taken any 
position upon this matter, why should Judge Dunne use 
sixty-eight of the one hundred and eighteen pages of his 
argument to the supreme court (pp. 50-118), for the pur- 
pose of refuting Professor Bouquillon ? (Pp. 355-423, above.) 

Rev. Thos. Bouquillon holds a chair in the Catholic 
University at Washington, and is a man of more than na- 
tional, indeed, of European reputation as a writer on moral 
theology. Recently he published a pamphlet entitled 
" Education— To Whom Does It Belong ? " (Murphy Com- 
pany, Baltimore, 1891). In the preface he states that he 
writes from a Catholic standpoint at the request of his 
ecclesiastical superiors who " deemed that a clear exposition 
of the principles underlying the school question would be 
both useful and opportune at this hour, when the practical 

* See pp. 216 and 217, above. Also pp. 218, 219, and 220. Also pp. 
30-35 and 56-60. 



492 THE STATE OF OHIO VS. THE REY. PATRICK F. QUIGLEY. 

difficulties in wliicli it is involved have become a national 
concern, were it only to show that in the matter of educa- 
tion, as in all other social concerns, the true doctrine of the 
Church is opposed neither to liberty well understood, nor to 
the just prerogatives of the state." 

Copies of this pamphlet will be furnished the court.''^ 
In it the professor vindicates, in the light of the authorities 
of his Church, the right of the state, not only to educate 
children, but to insist on a minimum of education for all 
children. I commend to the court this admirable exposition 
of the relative rights of parent, church, and state. I am 
content to believe that Prof. Bouquillon is nearer right 
than Judge Dunne as to the views of the authorities of the 
Catholic Church upon this matter, but on whatever side be 
the weight of church authorities, whether the preponderance 
is on the professor's side or on Judge Dunne's, one thing at 
least is clear, the Church has not yet spoken and the matter 
is in doubt. Under these circumstances, while theologians 
disagree, may not the state act, and let the theologians 
settle the difference themselves ? 

It will be time enough to abrogate the law when we are 
satisfied beyond doubt that the natural law for which 
Judge Dunne contends demands its abrogation. This 
court is not wont to annul the laws of the state upon doubt- 
ful grounds. 

I insist there is no natural right in the parent, recognized 
either by the Church, or by philosophers, jurists or states- 
men, or by the courts, which gives him the sole and ex- 
clusive control of his child's education, and forbids the state 
to interfere in any way, though the welfare of the child and 
the safety of society demand such interference. 

Not by the Church, for the Church insists on the right 
in itself to control the education of the child and concedes 
that right to the state which Judge Dunne terms the 
" Christian State ; " that is, the state which recognizes the 
Church of Kome as the only true Church and makes public 
* Copies were filed with the Supreme Court April 29, 1893. 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 493 

official profession of that fact. Such state may interfere 
in what manner and in what degree it pleases. (Brief, p. 
195 et seq.y 

Not by philosophers, jurists, or statesmen. Much has 
been written about the law of nature. Thomas Hobbes, 
who was born in the year of the Spanish Armada, and 
wrote the "Leviathan," a philosophic treatise on govern- 
ment, has several chapters on natural laws and the law of 
nature. Near the close of chapter 15 he says: "The laws 
of nature oblige inforo interno ; that is to say, they bind to 
a desire that they should take place ; but in foro externo, 
that is, to the putting them in act, not always. . . . These 
dictates of reason men use to call by the name of *laws,' but 
improperly, for they are but conclusions or theorems con- 
cerning what conduceth to the conservation and defence of 
themselves. Whereas law, properly, is the word of him 
that hath by right command over others." 

John Locke, who opposed, and successfully, Hobbe's 
theory, that the absolute rule of a king is the best rule, 
and, in his " Two Treatises on Civil Government," became 
the defender and interpreter of the spirit of the English 
revolution, in a chapter on paternal power says (book 2, 
chapter 6) : "Nay, this power (the paternal power) so little 
belongs to the father by any peculiar right of nature, but 
only as he is guardian of his children, that when he quits 
his care of them, he loses his power over them, which goes 
along with their nourishment and education to which it is 
inseparably annexed. . . . The nourishment and 

education of their children is a charge so incumbent on 
parents for their children's good. . . . The first 
part then of paternal power, or rather duty, which is educa- 
tion, belongs so to the father that it terminates at a certain 
season. When the business of education is over, it ceases 
of itself, and it is also alienable before." 

Puffendorf says (book 4, chapter 11, sees. 4 and 5) : 
" Parents do indeed owe their children maintenance." In 
^ See p. 185, above. 



494 THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 

this is included education, " tliose things likewise which fit 
and prepare a man for a social and civil life. ... As 
for the measure of what ought to be spent on education in 
training up children for a civil life, thus much at least is 
required that they be enabled to become honest and useful 
members of human society." I quote this to show that 
thus far back (Puffendorf wrote in the seventeenth century) 
the interest of society in the education of children is dis- 
tinctly affirmed.* 

We .turn to the economists. Adam Smith's " Wealth of 
Nations" was published in 1776. In book 5, chapter 1, 
part 3, respecting education : " But though the common 
people cannot in any civilized society be so well instructed 
as people of some rank and fortune, the most essential parts 
of education, however, to read, write, and account, can be 
acquired at so early a period of life, that the greater part 
even of those who are to be bred to the lowest occupation 
have time to acquire them before they can be employed in 
those occupations. For a very small expense the public 
can facilitate, can encourage, and can even impose upon 
almost the whole body of the people the necessity of ac- 
quiring those most essential parts of education." 

Coming now to John Stuart Mill, who Judge Dunne 
quotes in his brief as if in opposition to compulsory educa- 
tion, turn to the chapter on " The Limits of the Province 
of Government," in his great work on Political Economy : 
" Any well-intentioned and tolerably civilized government 
may think without presumption that it does, or ought to, 
possess a degree of cultivation above the average of the 
community, which it rules and that it should, therefore, be 

* Traits du Droit Naturel et des Oens was printed for the first time in 
the year 1672, in German. The work was enlarged in the year 1684, was 
translated into French by Jean Barbyrac, and printed with notes, at Am- 
sterdam in the year 1784, in two quarto vols. Febronius distorts Puffendorf 
to make the church of Rome odious. Puffendorf was the son of a 
Protestant minister and wrote on the natural law while in prison (8 years), 
closely following Grotius. 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 495 

capable of offering better education and better instruction 
to the people than the greater number of them would spon 
taneously demand. Education, therefore, is one of those 
things which it is admissible in principle that a government 
should provide for the people. The case is one to which 
the reasons of the non-interference principle do not nece-s^ 
sarily or universally extend." 

" With regard to elementary education, the exception 
to ordinary rules may, I conceive, justifiably be carried still 
further. There are certain primary elements and means 
of knowledge which it is in the highest degree desirable 
that all human beings born into the community should ac- 
quire during childhood. If their parents, or those on whom 
they depend, have the power of obtaining for them this 
instruction, and fail to do it, they commit a double breach 
of duty ; towards the children themselves, and towards the 
members of the community generally, who are all liable to 
suffer seriously from the consequences of ignorance and 
want of education in their fellow- citizens. It is, therefore, 
an allowable exercise of the powers of government to im- 
pose on parents the legal obligation of giving elementary 
instruction to children." 

Innumerable other authorities of equally great writers 
might be cited to the same effect. 

Woolsey, International Law, p. 27, says : " Jus naturale 
(the natural law) is the product of natural reason, and 
ought, since men are alike in their sense of justice, to be 
everywhere substantially the same." In the face of the 
views of the great writers and the universal practice of the 
civilized nations in respect to education and compulsory 
attendance, how can it be successfully maintained that the 
law of nature, taken in even the most general sense, con- 
fers exclusive power in the parent, as claimed by Mr. Hurd 
and Judge Dunne ? 

Finally, let us see what the legal authorities are. I 
quote from McPherson on Infants, an early work — the 
American reprint I have was published in 1843, prior to 



496 THE STATE OF OHIO VS. THE KEV. PATRICK F. QUIGLEY. 

the adoption of our present constitution (p. 142) : " The 
general principles upon which courts of equity interfere 
between father and child were discussed in the case of Gif- 
ford V. Gifford (decided in the last century, which arose out 
of a dispute between a Roman Catholic father and a Prot- 
estant mother), in which it appears to have been held that 
the parental authority, as to its civil course, was founded 
in nature, and the care which it was presumed the father 
would take for the education of the child ; but if he would 
not provide for it, of course he abandoned his right to the 
custody of the child's person ; or if he would educate it in 
a manner forbidden by the laws of this state, the public 
right of the community to superintend the education of its 
members, and to disallow what, for its own security and 
welfare, it should see good to disallow, went beyond the 
right and authority of the father." 

Justice Story, who wrote before the adoption of our 
present constitution, says (2 Story Eq, Jur.y sec. 1341), in 
distinct affirmation of the right of control of the state over 
the child : " The jurisdiction of the court of chancery ex- 
tends to the care of the person of the infant so far as is 
necessary for his protection and education. . . . It is for the 
due protection and education of the infant that the court 
interferes with the ordinary rights of parents, as guardians 
by nature or by nurture, in regard to the custody and care 
of their children. For although, in general, parents are in- 
trusted with the custody of the person and the education 
of their children, yet this is done upon the natural pre- 
sumption that the children will be properly taken care of, 
and wdll be brought up with a due education in literature 
and morals and religion, and that they will be treated with 
kindness and affection. But whenever this presumption is 
removed, whenever it is found that a father is guilty of 
gross ill-treatment, ... or that he professes atheistical or 
irreligious principles, ... or that he otherwise acts in a 
manner injurious to the morals or interest of his children, 
in every such case the court of chancery will interfere and 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 497 

deprive him of the custody of his children, and appoint a 
suitable person to act as guardian and to take care of them 
and superintend their education." 

Sec. 1342 : " The jurisdiction thus asserted, to remove 
infant children from the custody of their parents and to- 
superintend their education and maintenance, is one which 
seems indispensable to the sound morals, the good order, 
and the just protection of civilized society. On a recent 
occasion, after it had been acted on in chancery for one 
hundred and fifty years, it was attempted to be brought 
into question. It was, however, confirmed by the House 
of Lords with entire unanimity. (Wellesley v. Wellesley, 
2 BUgh N. S, 124, 128 to 145.)" 

Sec. 1343 : " The opposition to the jurisdiction was 
founded upon the right of the father to have the care and 
custody of the children ; that right in a general sense is not 
to be disputed. But the true question is, whether the father, 
having that right, is to be at liberty to abuse it. Why is 
the parent by law ordinarily intrusted wi^h the care of chil- 
dren ? Simply because it is generally supposed that he will 
best execute the trust reposed in him ; for that it is a trust, 
and of all trusts the most sacred, no one can well doubt." 

Sec. 1347: "What are the grounds on which the custody 
of children is given to the father ? First, protection ; then 
care ; then education. Is it not clear, if the father does 
not give that protection, if he does not maintain the chil- 
dren, that the law interferes for the purpose of compelling 
the maintenance of the children? Is it not clear, if the 
father cruelly treats the children in any manner, that a 
court of criminal jurisdiction will interfere for the purpose 
of preventing that ill-treatment ? Upon what ground can 
it be said that there is no jurisdiction whatsoever in the 
country which can control the conduct of a father in the 
education of his children ? If such a defect could exist in 
our jurisdiction, it would strike all civilized countries with 
astonishment." 

From Schouler's Domestic Kelations, sec. 235 : "The 



498 THE STATE OF OHIO VS. THE KEV. PATEICK F. QUIGLEY. 

secoud duty of parent is tliat of education, a duty wliicli 
Blackstone pronounces to be the far greatest of all these in 
importance. This importance is enhanced by the considera- 
tion that the usefulness of each member of the human family 
to society depends chiefly upon his character as developed 
by the training he receives in early life. Not the increase 
of population, but the incrfase of a well-ordered, intelligent 
population is to determine the strength #f the state. . . . 
So intimately is government concerned in the results of 
early training, that it interferes, and justly, too, both to aid 
the parent in giving his children a good education and in 
compelling that education v/here the parent himself, and 
not the child, is delinquei^t in imlproving the opportunities 
offered." (Quoting authorities*) 

In case of Ex parte Crous*,Mecided by the Supreme 
Court of Pennsylvania in 1838, when the famous Justice 
Gibson was at the head of ihe^ bench," 'the control of the 
state in the interests of society, oyer the education of the 
child is thus forcibly asserted (4 Wharton, 11) : " May not 
the natural parents, when unequal to the task of education, 
or unworthy of it, be superseded by the parens joatrice, or 
common guardian of the community ? It is to be remem- 
bered that the public has a paramount interest in the virtue 
and knowledge of its members, and that of strict right the 
business of education belongs to it. That parents are ordi- 
narily intrusted with it, is because it can seldom be put into 
better hands ; but where they are incompetent or corrupt, 
w^hat is there to prevent the public from withdrawing their 
faculties, held as they obviously are at its sufferance ? 
The right of parental control is a natural, but not an unaliena- 
ble one. It is not excepted by the declaration of rights out of 
the subjects of ordinary legislative poiver, which, if wantonly 
or inconveniently used, would soon be constitutionally re- 
stricted, but the competency of which, as the government 
is constituted, cannot be doubted." 

To the same effect are the cases in this state of Prescott 
V. The State, 19 0. S. 184, Clark v. Bayer, 32 0. S. 299, and 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 499 

Cincinnati House of Eefuge v. Ryan, 37 0. S. 197. In the 
latter case Judge Johnson says (p. 204) : " The authority of 
the state, as parens jpatrice, to assume the guardianship and 
education of neglected homeless children as well as neg- 
lected orphans, is unquestioned." 

If my memory serves me, it is asserted in the briefs on 
the other side, that no case has been yet decided sustaining 
the interference of the state under a compulsory attend- 
ance law. This is a mistake. In the School Board for 
London v. Jackson, 7 L. B. Q. B, D. 502, the defendant, a 
widow, was charged with unlawfully neglecting to comply 
with the order issued under the Elementary Education Act, 
1876, requiring her to send her daughter to a certified 
school. The magistrate dismissed the complaint, because 
it was not proved the child was residing with and under 
the control of the defendant, her mother. 

Chief Justice Coleridge held the magistrate was wrong, 
and the defendant ought to have been convicted, saying : 
" It was intended by the education act that the children of 
England should be educated, and it was intended to im- 
pose the responsibilitj^ of sending them to school upon 
definite persons where those definite persons exist. Pri- 
marily, the person on whom it imposes that responsibility 
is the parent. In certain specified cases the parent is ex- 
empted from this responsibility, but the present is not one 
of those cases. I am of opinion that the object being that 
children should be educated, parents are the first persons 
on whom the order should be made." 

I have endeavored to show the limits of the righi^ of the 
parent to control the education of his child. He has the 
right to educate, but he has not the right to neglect to edu- 
cate, or to withhold education. The law under considera- 
tion in no way abridges this right of the parent, nor 
endeavors to control his choice. As was well said by Judge 
Pugsley : '' The law recognizes the right, and seeks to en- 
force the duty. The law does not interfere with the control 
or management of private schools. Attendance upon a 



500 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

parochial or otlier private school is not forbidden. On the 
other hand, it is a full compliance with the law, and chil- 
dren in the state who attend parochial or other private 
schools are not by this law compelled to attend the public 
schools." 

2. Are any rights of conscience violated ? 

Judge Dunne's claim that the conscience rights of his 
client and his co-religionists are violated can be supported 
only by showing that the Church (I mean the Catholic 
Church) has pronounced against the right of the state to 
compel the attendance of children at some school — to 
compel the education of children — that the Church has 
taken a position in opposition to this law. But this Judge 
Dunne cannot show. The pamplet of Professor Bouquillon, 
and the authorities he cites, the action of Father McCarthy 
at Toledo in recognizing and observing the law, the action 
of the Catholic clergy all over this state in taking advan- 
tage of this law and calling upon the officers to enforce it, 
in order to stop truancy and compel the attendance of 
Catholic children at the parochial schools, puncture the 
assumption of Judge Dunne, that he has authority to 
speak for his co-religionists in this matter. In what way 
can this law or its enforcement violate any man's con- 
science ? 

How could it have hurt Dr. Quigley's conscience to fill 
the blanks sent him, and advise the state of the names, 
ages, and residence of the pupils in his school, the number 
of days each was present, or absent, or truant ? The state 
did not ask this for the purpose of forcing these children 
to go to the public schools. It needed the information, 
first, to compel the truants from the parochial school to 
attend that school ; and next, to ascertain what children 
were in school, whether public, private, or parochial, so it 
might look after and take care of the children not in school, 
the vicious and incorrigible, or the neglected and abused. 
Without such information it would be impossible to enforce 
any compulsory education law. 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY, 501 

And wliat is there in this law to offend any Catholic 
parent ? Is there a single parent who objects to the 
branches required — spelling, reading, writing, English 
grammar, geography, and arithmetic? Is there a single 
elementary school in this state, whether public, private, or 
parochial, that does not teach these branches ? All the 
Catholic parent has to do to comply with the law, is to 
send his child to the parochial school Does he object 
to that ? Why, that he has been doing right along. That 
his Church and his conscience require him to do. Let him 
obey his Church and he will comply with the law. 

3. The constitution has con/erred on the state not only 
power to furnish means of instruction, hut to make such means 
efficient for the common loelfare^ hy making education com- 
pulsory. 

The first section of the second article of the constitution 
declares that " the legislative power of this state shall be 
vested in a general assembly, which shall consist of a 
senate and house of representatives." The same provision, 
in very nearly the same words, is found in the former con- 
stitution. It will be observed that the provision is not 
that the legislative power, as conferred in the constitution, 
shall be vested in the general assembly, but that the legis- 
lative poiver of this state shall be vested. That includes all 
legislative power which the object and purposes of tha 
state government may require, and we must look to other 
provisions of the constitution to see how far and to what 
extent legislative discretion is. qualified or restricted. 
Hence the difference between the constitution of the 
United States and a state constitution such as ours. In 
the former we look to see if a power is expressly given ; 
in the latter, to see if it is denied or limited. (Gholson, 
Judge, in Baker v. Cincinnati, 11 0. S. 542.) 

Were there no mention of education, of common schools, 
in the constitution, the general grant of legislative power 
would and indeed does include the power to establish a 
system of common schools, and to compel the education of 



502 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

children of the state, in order to secure the blessings of 
freedom and to promote the common welfare. But if there 
were any doubt that the general grant of legislative power 
vested in the general assembly authority to provide for 
and enforce the education of the children of the state, the 
solemn injunctions of the constitution as to the need of 
knowledge and an efficient system of education should at 
once and forever dissipate the doubt. 

The constitution in section 7 of Article I. declares that 
" religion, morality, and knowledge being essential to good 
government, it shall he the duty of the general assembly to pass 
suitable laivs to protect every religious denomination in the 
peaceful enjoyment of its own mode of worship and to 
encourage schools and the means of instruction. And again. 
Article VI., section 2, it provides : ^^ The general assembly shall 
make such provisions, by taxation or other wise^ as with the in- 
come arising from the school trust fund ivill Secure a thorough 
and efficient system of common schools throughout the state.'' 

This is not only an explicit recognition of the right of 
the state to educate, but an imperative command to the 
legislature to pass laws to provide a system of popular 
education, and make it thorough and efficient. 

Mr. Hurd contends (pages 36 to 39, his brief) that 
Article VI. contains a specific grant of power to legislate 
upon the subject of education which withdraws this subject 
from the general grant in Article II., section 1, and cites 
in support of this position Beeves v. Treasurer of Wood 
County, 8 0. S. 339. 

But Reeves v. the Treasurer of Wood County turned 
upon the question as to whether section 6 of Article XIII. 
contained a grant of the power of assessment, and the 
court held it did not ; that no grant was expressed ; that it 
contained simply a mandate respecting the exercise of the 
power of assessment ; and so this case is an authority on 
our side. Mr. Hurd misreads the constitution when he 
says (his brief, p. 38) that Article VI. expressly authorizes the 
establishment of an efficient system of common schools ; 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 503 

that it provides that the general assembly may pass laws 
necessary to establish and maintain public schools. The 
word '' may " is not used. The section does not read : " The 
general assembly may make such provisions as will secure 
a thorough and efficient system of common schools," etc. ; 
nor does it read : *' The general assembly shall have power to 
make such provisions," etc. But it reads : " The general 
assembly shall make such provisions as will secure a 
thorough and efficient system of common schools." 

And so the language of Judge Gholson in Baker v. Cin- 
cinnati (11 0. S., p. 543, top), respecting the wording of 
section 2 of Article XIL, is pertinent : " This is not a grant 
of power." . . . The expression is "laws shall be passed," 
not that "the general assembly shall have power to pass." 
Under section 2 of Article YL, the general assembly is 
required to make such provisions as will secure a thorough 
and efficient system of common schools throughout the 
state, but it is left to the discretion of the general assembly, 
in the exercise of the general legislative power conferred 
upon it, to determine as well what laws are suitable to 
secure a thorough and efficient system of common schools, 
as those needed to provide for the common welfare. State 
ex rel. v. McCann, 21 0. S. 205. 

Something, we understand, is claimed under section 20 
of Article I., which reads : " This enumeration of rights shall 
not be construed to impair or deny others retained by the 
people, and all powers not herein delegated remain with 
the people." This section is construed in Ohio ex rel. v. 
Covington, 29 0. S. 112, as follows : 

" This last clause means exactly what its words import ; 
but even from them a plain implication arises that all the 
powers in and by the constitution delegated do not remain 
with the people, but are vested in the agents and officers of 
the government, to be exercised by them alone. 

"Among the powers delegated by the constitution is the 
following. Article II., section 1: 'The legislative power of 
the state shall be vested in the general assembly.* 



504 THE STATE OF OHIO VS. THE liEV. PATIUCK P. QUIGLEY. 

" Now, whatever limitations upon tlie power thus dele- 
gated to the general assembly may be found in other pro- 
visions of the constitution, it is quite clear that section 20 
of the 1st article does not impose any limitation upon it 
whatever. That section only declares that powers not 
delegated remain with the people. It does not purport to 
limit or modify delegated powers." Further, bottom of p. 
113 : " Indeed, the true rule for ascertaining the powers of 
the Legislature is to assume its power under the general 
grant ample for any enactment within the scope of legisla- 
tion, unless restrained by the terms or reason of some ex- 
pressed inhibition." Quoted with approval by Minshall, 
judge, in State ex rel. v. Smith, 44 0. S. 372, bottom page. 

In the light of the sections of the constitution referred 
to, as construed by the decisions quoted, I claim that under 
the general grant of power, tLere being no limitations in 
the way, and the subject of education coming within the 
scope of legislative authority as exercised in all civilized 
countries, it was competent for the Legislature to pass this 
compulsory education act, if, in its discretion, it took the 
view either that the security of the state or the promotion 
of the common welfare rendered such a law expedient ; or 
that to carry out the command of Article YL, and render 
the common schools in the best sense thorough and ejSicient, 
such an ena<}tment was desirable. 

The answer of the other side of this (Mr. Hurd's brief, 
p. 26 et seq.) is that because no compulsory education act 
was passed prior to the adoption of the present constitu- 
tion, nor until the year 1877, therefore no such act can ever 
be passed until we get a new constitution with new powers ; 
and he quotes State v. Frame, 39 0. S. 420, in which Okey, 
judge, contended that the Dow law was. unconstitutional 
because no statute like it had ever before been passed. 
But the court failed to see the matter in the same light as 
Judge Okey did and sustained the law. 

It is a remarkable theory of the constitution that the 
situation of things at and prior to the adoption of the con- 



THE STATE OF OHIO VS. THE EEV. PATEICK F. QUIGLEY. 505 

stitution, and the course of legislation that preceded it, 
should limit and circumscribe legislation under it. Al- 
though popular education was a proper subject of legisla- 
tion prior to the adoption of the present constitution, and 
remains so still, yet Ihe mode of treating that subject before 
the present constitution is the only mode for treating it 
now, despite the fact that the conditions have changed 
completely ! 

This same argument was used in Ohio ex rel. v. Coving- 
ton, 29 0. S., p. 113, and torn to tatters by Judge Mcllvaine, 
thus : 

" It is claimed by counsel for the relator, as we under- 
stand their arguments, that such inhibition is implied from 
the provisions quoted above from the bill of rights, espe- 
cially when they are considered in connection with the 
history and practice of the state at and previous to the 
adoption of the constitution. 

" To this argument a majority of the court desire to express 
their unqualified dissent. By such interpretation of the con- 
stitution, the body of laivs in force at the time of its adoption 
loould have become as j)ermanent o,nd unchangeable as the con- 
stitution itself. For such argument ivould^ apply loith equal 
force to every subject of legislation concerning ivhich no special 
direction is contained in the constitution. Indeed, the true rule 
for ascertaining the poioers of the Legislature is to assume its 
potver under the general grant ample for any enactment ivithin 
the scope of legislation, unless restrained by the terms or reason 
of an expressed inhibition.'' 

In confirmation of the correctness of the construction of 
the constitution by our supreme court as given above, I 
refer to Cooley's Constitutional Limitations, page 106 et seq.: 
" In creating a legislative department and conferring upon 
it the legislative power, the people must be understood to 
have conferred the full and complete power as it rests in 
and may be exercised by the sovereign power of any country, 
subject only to such restrictions as they may have seen fit 
to impose." (Bottom, p. 106.) 



506 THE STATE OF OHIO VS. THE REV. TATKICK F. QUIGLEY. 

*' The people iu framing tlie ccnstitution," says Denio, 
cliief-justice, " committed to tlie Legislature the whole 
law-making power of the state, which they did not expressly 
or impliedly withhold. Plenary power in the Legislature 
for all purposes of civil government is the rule. A prohibi- 
tion to exercise a particular power is an exception." (Middle, 
p. 107.) 

" It has never been questioned so far as IJcnow" says Eed- 
field, C. J. , " that the American legislatures have the same un- 
limited power in regard to legislation which resides in the 
British Parliament, except ivJiere they are restrained by written 
constitutions.''' (Top, p. 108.) 

To take the act in question out of the plenary power 
thus granted, it must be shown that popular education can- 
not be held to be within the purposes of civil government ; 
that the sovereign power of a country has no right to 
look to or care for the spread of knowledge among the 
people. 

This Mr. Hurd attempts to do by arguing that, at com- 
mon law, education was noi the work of the public author- 
ities, and that control of it did not come within the scope 
of legislative power. I have already show^n, in discussing 
the comparative right of the parent and the state with 
respect to the education of children, that the state has an 
interest, has always been recognized to have an interest, in 
the education of the children, the future citizens of the 
state, and may properly legislate to that end ; but I shall 
briefly refer to Mr. Hurd's authorities to show they do not 
sustain his position. 

He quotes Blackstone. But Blackstone says : " Yet the 
municipal laws of most countries seem to he defective in this 
point, by not constraining the parent to bestow a proper 
education upon his children." This is not a denial of power 
to the siate, but a rebuke of the state for not exercising 
power which it has, and the great commentator goes on to 
speak of certain wise provisions which have been made ; 
for instance, taking poor children out of the custody and 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 507 

control of their parents and apprenticing them, so they may 
be brought up to the advantage of the commonwealth, a;pd 
prohibiting rich people from sending their children beyond 
the seas to be educated there, whether the purpose be to 
prevent its good education in England, or '' in order to enter 
into or reside in any popish college." These instances 
show that Parliament had and exercised the right to an 
extent I do not claim for our Legislature, seeing it even went 
to the extent of violating rights of conscience. 

Mr. Hurd quotes Kent. But 2 Kent Com., pp. 197 to 
218, contains an account of the state of education in this 
and foreign countries at the time Chancellor Kent wrote, 
which was before the adoption of our present constitution, 
and gives instance after instance of the passage of laws 
making education compulsory, from that of Massachusetts 
in 1642 (see note, bottom, p. 202), and Connecticut, 1650 (see 
note, p. 203), on down to the present day. 

Mr. Hurd quotes Walker's American Law. But 
Walker, p. 219, speaking ^of our Ohio school system, says : 
" The system is yet in its infancy, but much may be ex- 
pected from it hereafter. It has this transcendent merit, 
that so far as it extends, it opens the inestimable treasures 
of knowledge equally to the rich and the poor. So far 
then as the diffusion of knowledge, far and wide among 
the people, can give value and permanency to our free 
institutions, the free school system, which is the true 
democracy of education, is calculated to produce that glo- 
rious result." And on p. 70, bottom, speaking of the duty 
of the parent to maintain, protect, and educate his children, 
this is said : " He would be an unnatural parent who should 
be false to them, having the ability to perform them. But 
it is certainly a mistake to say they are duties of strict 
legal obligations, unless there he a statute to that effect. '" 
This is an admission of the right to pass a statute. 

4. Law not unconstitutional because of penalties inflicted or 
procedure required. 

It is contended, because section 4, as amended (87 0, 



508 THE STATE OF OHIO VS. THE REV. PATEICK F. QUIGLEY. 

S. 143), subjects the parent wlio refuses to send a cliild 
under sixteen, who has been discharged from employment 
in order to get the schooling required in section 3, to some 
public or private school until it has acquired such instruc- 
tion, to a fine or to imprisonment, and because section 13, 
as amended (87 0. S. 325), provides that majors, justice 
of the peace, and probate judges shall have jurisdiction to 
try offences described in this act and their judgment shall 
he final, therefore the act is unconstitutional. 

A mayor, justice of the peace, or probate judge, it is 
said, cannot give final judgment in a case involving impris- 
onment. 

But no such case is before the court. The case at bar 
v^^as tried before a jury, and the case at bar is brought 
under section 13, which makes the defendant liable only to 
a fine. I doubt not that the jurisdiction of mayors, jus- 
tices, etc., under section 13, would be restricted to cases 
punishable only by fine. 

Moreover, the provisions involved in this objection are 
not essential to the act. The part of section 13 giving 
mayors final jurisdiction was tacked on, long after the pas- 
sage of the original act, and can be rejected without in any 
way impairing the measure. 

It is further contended that the confinement of chil- 
dren under section 8, as amended (87 0. S. 325), in a juven- 
ile reformatory or children's home, or the Boys' Industrial 
School, or the Girls' Industrial Home, is in the nature of a 
sentence for a crime that cannot be pronounced upon sum- 
mary process, but only after a trial by a jury. 

This objection has been frequently made to the deten- 
tion of incorrigible children in houses of refuge, and reform 
farms or schools, and has been overruled in the case of 
Fx parte Grouse, 4 Tf^arton, 11, which I have cited in 
another connection, and also in this state in the cases of 
Prescott V, State, 19 0. S. 184, and Cincinnati House of 
Eefuge V. Eyan, 37 0. S. 197. 

** This case is neither a criminal prosecution, nor a pro- 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLET. 509 

ceeding according to the courts of common law, in which 
the right of a trial by jury is guaranteed. The proceeding 
is purely statutory, and the commitment in cases like the 
present was not designed as a punishment for crime, but to 
place minors of the description and for the causes specified 
in the statute under the guardianship of the public author- 
ities named, for proper care and discipline. . . . The insti- 
tution to which they are committed is a school, not a 
prison." 19 0. >S'. 187, "White, judge. 

" The proceeding is purely statutory. It is intended to 
provide a summary method for paring for destitute cliil- 
dren. The commitment is not designed as a punishment for 
crime, but to place destitute, neglected, and homeless 
children, and those who are in danger of growing up as 
idle ajid vicious members of society, under the guardian- 
ship of the public authorities for their proper care and to 
prevent crime and pauperism. As to such infants it is a 
home and a school, not a prison." 37 0. S. 203, Johnson, 
judge. 

But it is urged, in order to get rid of the effect of the 
Prescott and Ryan decisions, that in neither case was there 
a charge of an offence, nor any prosecution or sentence, 
but that, under section 8 of this act, a child found to 
be a juvenile disorderly person shall be "deemed guilty 
of a misdemeanor," and "sentenced," etc. I concede 
that the words "guilty of a misdemeanor" and "sen- 
tenced " are inappropriate ; but there is no magic in 
words, and it is not an unsuitable expression that will 
render a statute unconstitutional. The general opera- 
tion and effect of a measure is what determines its 
constitutionality and validity (State v. Judges 21 0. S. 
11; State v. Hipp, 38 0. S. 199). It is perfectly plain, 
notwithstanding the use of the words " misdemeanor " 
and " sentenced," that sections 5 and 8 do not pro- 
vide a punishment for the offence of being a juvenile 
disorderly person, but simply a mode for placing such 
children under proper care and discipline, and compelling 



510 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 

tliem to submit to the schooling that the interests of the 
state demand they should have. The detention in the re* 
formatory is at the discretion of the trustees of the institu- 
tion, and there is a further proviso that in all cases the 
sentence (meaning the order of commitment) may be sus- 
pended in the discretion of the court, for such time as the 
child shall regularly attend school and properly deport 
hiraself or herself. 

JUEISDICTION OF THE COMMON PLEAS. 

By section 456 K. S., the common pleas court has "orig- 
inal jurisdiction of all crimes and offences, except in cases 
o£ minor offences, the exclusive jurisdiction of which is 
vested in justices of the peace, or that may be vested in 
courts inferior to the common pleas." 

Section 13 of the act under consideration, as passed 
April 15, 1889, created a new offence, the offence of which 
the plaintiff in error was convicted in the court below. 
Thereupon, jurisdiction of the offence vested in the common 
pleas. The question is, whether the amendment of April 
25, 1889, which added to section 13 the following words : 
"And mayors, justices of the peace, and probate judges 
Siiall have jurisdiction to try the offences described in this 
act, and their judgment shall be final," divested the com- 
mon pleas of jurisdiction, and vested exclusive jurisdiction 
in mayors, justices of the peace, and probate judges. 

The general rule is, that when one court has jurisdiction 
of an offence and a statute is passed giving another court 
jurisdiction of the same offence, but not exclusive jurisdic- 
tion, the latter remedy is simply cumulative, and the courts 
have concurrent jurisdiction. Moreover, the rule requiring 
a strict construction of penal statutes does not apply to the 
matter of jurisdiction, and the persumption is in favor of 
the court first acquiring and exercising jurisdiction. Bish. 
on Crim. Prac, vol. 1, sec. 315 ; Bish. on Stat. Crime, sec. 
164, 198 ; Com. v. White, 8 Pick. 453 ; Com. v, McCloskey, 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 511 

2 Bawle, 369 ; Smith v. People, 47 K Y. 330, 341. (Cited 
by Judge Pugslej below.) See also Sutherland on Stat. 
Con., sec. 396. 

In this last authority, Shaw, Ch.J., is quoted as saying, 
in Commonwealth v. Hudson, 11 Gray, 64, involving the 
question whether a grant of jurisdiction to a justice ousted 
that previously existing in the common pleas : 

" Before this statute, the court of common pleas had 
jurisdiction over the subject matter. Is that jurisdiction 
taken away ? It is no answer to say that another tribunal 
has jurisdiction, for that is very common. It is in such 
case concurrent jurisdiction, whether so called in the stat- 
ute or not There must be words of limitation to take 

it away, either by using the word ' exclusive,' or by re- 
pealing the former act giving jurisdiction, by which it may 
appear the legislature meant, not only to confer jurisdiction 
on justices of the peace, but to take away the other juris- 
diction." 

But opposing counsel rely on Com. v. Bank, 32 0. S. 
194, the syllabus of which reads : " Where a statute cre- 
ates a new offence by prohibiting and making unlawful any- 
thing which was lawful before, and provides a specific rem- 
edy against such new offence (not antecedently unlawful) 
by a particular sanction and method of procedure, that 
method of proceeding and none other must be pursued." 

This syllabus is taken word for word from Lord Mans- 
field's decision in Rex v. Robinson, 2 Burr. 803. The case 
came before Lord Mansfield upon a motion in arrest of 
judgment, on an indictment under the common law, against 
the defendent for refusing to obey an order of sessions re- 
quiring him to maintain certain minor children, in which 
the breach was laid according to 43 Eliz., which provided a 
summary method of recovering the penalty for the offence, 
a method not followed in this case. The ground of the 
motion in arrest was that the summary method given by 
the statute was exclusive. Lord Mansfield overruled the 
motion. 



512 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

" The true rule of distinction," says Lord Mansfield, 
"seems to be, that where the offence intended to be guard- 
ed against by a statute was punishable before the making 
of such statute prescribing a particular method of punish- 
ing it, there such particular remedy is cumulative, and does 
not take away the former remedy ; but where the statute 
only enacts that the doing of any act not punishable before 
shall, for the future, be punishable in such and such a par- 
ticular manner, there it is necessary that such a particular 
method by such act prescribed must be specifically pur- 
sued." 

Now, the offence of which the plaintiff in error was 
convicted, is the same offence created by the statute of 
April 15, 1889, sections 11 and 13, of which offence the 
common pleas had undoubted jurisdiction. Continuously 
from the time the original act went into effect until now, it 
has been the duty of principals of all schools, public 
and private, to report to the clerk of the board of educa- 
tion the names, ages, and residence of pupils, with other 
facts that the clerk may require ; in short, to do the 
things which Dr. Quigley was requested to do and refused 
to do, for which neglect and refusal he was indicted, tried, 
and convicted. Not a single new element has been added 
to the offence of which Dr. Quigley is charged. It is true 
that in the act of 1890 the further duty was imposed on 
principals of reporting cases of truancy or incorrigibility 
directly after the commission of such offences ; but the 
plaintiff in error is not charged with a violation of this 
duty. The offence in every particular has remained the 
same, punishable by the same fine. There are no words 
vesting exclusive jurisdiction in mayors, etc. I submit that 
it follows the common pleas retains the jurisdiction of this 
offence which under the general statutes it acquired when 
the offence was created. Courts in other states have held 
to this effect. See Allen v. The State, 5 Wis. 329 ; State v. 
Wister, 62 Mo. 592 ; People v. Hogan, 55 Hun, 391. 

I ask the court to read Judge Pugsley's decision on this 



THE STATE OF OHIO VS. THE KEV. PATEICK F. QUIGLEY. 513 

point in the Law Bulletin^ from wliicli I have largely 
drawn. 

Mitchell V. Brown, Ellis & Fills, vol. 1, p. 273, cited by 
Mr, Hurd, holds that if a later statute again describes an 
offence created by a former statute and affixes a different 
punishment to it, varying the procedure, etc., giving an 
appeal where there was no appeal before, the prosecutor 
must proceed under the latter statute. The latter statute 
operates by way of substitution, and not cumulatively. 
But the case at bar is not such a case. There is no change 
in the punishment ; the offence remains the same, and no 
inference can be drawn that the legislature intended to vest 
exclusive jurisdiction in mayors, etc. It is optional with 
the prosecutor which mode of procedure to pursue. 

SUFFICIENCY OF THE INDICTMENT. 

The first objection to the indictment is that it fails to 
charge that the demand was made of the defendant below 
to report the names, ages, and residences of the pupils in 
order to facilitate the carrjdng out of this act. 

To this I reply that section 11 does not provide that the 
clerk shall make such demand upon the principal. It 
makes it the principal's duty, primarily, to report to the 
clerk certain facts, to wit, " the names, ages, and residences 
of all pupils ; " these are the leading facts, for neglect and 
refusal to report which the defendant below was indicted ; 
but it is the duty of principals to report also " such other 
facts as said clerk may require in order to facilitate the 
carrying out of the provisions of this act." The clerk is to 
furnish the blanks, and those blanks under the law contain 
a sufficient demand for and description of the information 
required. 

The second objection to the indictment is that it does 
not aver that the defendant was a principal of a public or 
private school. It simply avers he is the principal of a 
school, and it is insisted that while a parochial school may 



514 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

be a school, it is neither a public nor private school, and 
hence not within the terms of the act. Mr. Hurd says that 
section 1 of the act recognizes three classes of schools, 
public, private, and parochial, and section 11 imposes the 
duty of making reports on the principals of only two of 
these classes, public and private. A closer reading of sec- 
tion 1, however, would have satisfied Mr. Hurd that it rec- 
ognizes two classes, " public or private," and later on in the 
section recognizes parochial as a part of the second class, 
" private or parochial." The parent is required by section 
1 to send his child to a " public or private school," unless 
the child is excused from attendance by the superintendent 
of " the public, private, or parochial school." What is a 
parochial school ? It certainly is not a public school ; 
then it must be a private school. Section 11 requires this 
report from the principals of " all schools," and then the 
words follow " public and private," showing that *' public 
and private " is intended to Cover " all schools," including 
parochial schools. 

BEGULAEITY OF THE TRIAL. 

As to the point made under the proviso of section 9, 
namely : " This law shall not be operative in any school 
district where there are not sufficient accommodations to 
seat children compelled to attend school under the provis- 
ions of this act," I refer the court to the charge of Judge 
Pugsley (Eecord, p. 94 et seq.), and the decision of the cir- 
cuit court. The contention on the other side is that before 
the law can be operative in a city, there must be seating 
accommodations in the public schools for all the children 
in the city, including those attending private or parochial 
schools. How can this claim be seriously advanced in the 
face of the fact that children attending private or parochial 
schools cannot be compelled to attend public schools 
under the provisions of this act ? All that is required by 
this proviso is that there shall be sufficient accommoda- 



THE STATE OF OHIO VS. THE REV. PATEICK F. QUIGLEY. 515 

tions in the public scliools for the children who may be 
compelled to attend such schools. This does not include 
pupils of private or parochial schools. Their attendance 
at such schools is a full compliance with the act, and re- 
lieves them of any duty to attend the public schools, and 
relieves the public of any obligation to provide accommo- 
dations for them. It would be the height of nonsense to 
hold that in the city of Toledo or Cincinnati, where there 
is seating accommodations in the public schools for all the 
children who could be compelled to attend them, that the 
public would have to duplicate all the private and parochial 
schools in the city, build and furnish new school-houses 
equal in capacity to all the private and parochial schools 
in the city, and let them stand empty and useless, before 
this act would be operative. 

The presumption was that the law was operative, and it 
was for the defendant below to bring his case within the 
proviso, though upon this point the court charged decidedly 
in his favor. Stanglein v. The State, 17 O. /S. 453 ; Geiger 
V. Ohio, 5 Cir. Court Bep. 283. 

The second objection (Mr. Hurd's brief, p. 13) is that 
the court charged the jury that the defendant under the 
proof was a principal of the school within the terms of the 
statute. This is an incorrect statement as to what the 
court's charge was. (See Eecord, p. 97.) Judge Pugsley 
clearly and correctly defined what constitutes a principal of 
a school, and left it to the jury to say whether in the light of 
the proof the defendant below was such principal. I refer 
the court also to the circuit court's decision on this point. 

The third and final objection urged by Mr. Hurd (brief, 
bottom, p. 13) is, that the defendant below was not " person 
or officer mentioned in the act, and designated as having 
any duties to perform in the enforcement of any of its pro- 
visions.'' Judge Pugley's exhaustive decision on the 
motion in arrest of judgment, as reported in the Laiv Bulle- 
tin, thoroughly dissipates this objection. I refer the court 
to it. 



516 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

CONCLUSION. 

1. The purpose of the compulsory education act is to 
see that every child in the state gets what belongs to him, 
an elementary education, and to see that the state gets what 
it must have in order to endure, namely, an intelligent citi- 
zenship. The act was passed after a long and serious con- 
sideration, upon the repeated recommendations of the edu- 
cational authorities of the state, for the best of reasons, 
and with absolute unanimity. The measure was not excep- 
tional in character. Twenty-seven states and territories 
have compulsory education laws ; the United States has 
recognized the principle in the organization of Alaska, and 
in all the civilized countries of Europe education is' com- 

• pulsory. 

2. The act does not interfere with the right of the par- 
ent to educate his child. It is the duty of the parent to 
educate. The right follows the duty. But the parent may 
not violate the duty to abuse the right. He may not with- 
hold, neglect, or pervert the education of his child, else the 
state may interfere for its own security and the welfare of 
society. 

3. The act does not violate any rights of conscience. 
The choice of the school is left to the parent ; he may send 
his child to what school he pleases ; but he must send it to 
some school, or otherwise educate it. So long as he does 
his duty to the child, the law puts on him no compulsion 
or restraint whatever. And there is no impertinent intru- 
sion by the state in the affairs or management of private or 
parochial schools. The facts required are of public inter- 
est, without which no compulsory education law could be 
enforced. 

4. Full authority was given the Legislature by the con- 
stitution to pass this law. Plenary power to legislate for 
the common welfare for all the purposes of civil govern- 
ment is vested in the Legislature. That popular education 
is a proper subject of legislation, has been recognized from 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 517 

tlie beginning by all representative forms of government : 
but in addition the ordinance of 1787, and the constitution 
of 1802 and 1851, explicitly recognize the need of universal 
education among the people, and solemnly command the 
general assembly to provide for it. If, in its discretion, 
the Legislature thought this law was expedient, either ; 

(a) To promote the general good, and ward off the 
perils to society from vice and ignorance in the young ; or 

(b) To make the common schools thorough and efficient 
by bringing to them every child not elsewhere being edu- 
cated, thus making education thorough and efficient by 
making it universal ; in either case, the Legislature has 
spoken, and the law must stand. 

5. There are no unconstitutional penalties inflicted or 
mode of procedure required by the law. But if there are 
any faults in the law, such faults are not involved in this 
case, nor are they of the essence of the law, and may be 
rejected without impairing its integrity or efficiency. 

6. The court which tried the defendant below had juris- 
diction of the offence. The indictment was clear and ex- 
plicit, putting the defendant on notice of the charge, with 
full opportunity to defend himself. The trial was fair and 
regular, and the judgment of the lower court, affirmed by 
the circuit court, should stand. 

EespectfuUy submitted, 

J. K. ElCHAEDS, 

Attorney- GeneraL 



OEAL AEGUMENTS. 



PATEICK F. QUIGLEY, 

Plaintiff in Error, 

V. 

THE STATE OF OHIO, 

Defendant in Error, 



^ In the Supreme Court 
of Ohio. 



STENOGEAPHIC EEPOET OF OEAL AEGUMENTS MADE IN THE 

SUPEEME COUET OF OHIO, APEIL 29, 1892, IN THE 

ABOVE-ENTITLED CAUSE. 

Present : Hon. Frank H. Hurd, on belialf of the plaintiff 
in error ; Hons. Kichards, Watson, and Barber, on behalf of 
defendant in error. 

Chief- Justice Speae : In the case of Quigley against the 
state, counsel may proceed with the oral argument. 

Hon. Feank H. Hued, on behalf of the plaintiff in error, 
Patrick F. Quigley, then addressed the court as follows : 

If youe Honoes please : The plaintiff in error, a priest 
of the Roman Catholic Church, was indicted by the Court 
of Common Pleas of Lucas County, Ohio, for the violation 
of section 11, of the act generally known as the compul- 
sory education act, passed April 15, 1889. That section 
provides " that it shall be the duty of all principals and 
teachers of all schools, public and private, to report to the 
clerk of the board of education of the city, village, or town- 

518 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 519 

ship in which schools are situated the names, ages, and 
residence of all pupils in attendance in their schools, 
together with such other facts as the clerk may require, in 
order to facilitate the carrying out of the provisions of this 
act," etc. Demand having been made upon the plaintiff in 
error for this report, he refused to make it, in order that 
the question as to the constitutionality of the act under 
which this service was required of him, might be deter- 
mined by the judicial tribunals of this state. He was con- 
victed by the court of common pleas of his county, and 
sentenced to pay a fine of $25. This judgment of the 
common pleas court was affirmed in the circuit court, and 
it is against this affirmance of that judgment by the circuit 
court that these proceedings in error are prosecuted. 

In the briefs, which have been submitted in this case, 
many important questions are discussed, as to the suffi- 
ciency of the indictment, the regularity of the proceedings 
at the trial, and the true construction of many of the pro- 
visions of the act. Not waiving any of the propositions on 
which I insist for the plaintiff* in error upon these points, I 
propose in this oral argument only to discuss the question 
as to the power of the general assembly to pass this law. 
Nor do I find it necessary in the propositions I shall main- 
tain to deny that it is competent for the general assembly 
to pass a law compelling children to attend the public 
schools where parents have accepted that system of educa- 
tion, or to punish and pick up the truant, idle, or vagabond 
child, or to punish the parent who neglects his duty to his 
offspring. It is sufficient for my purpose now to maintain 
that the law as it stands, and as it was passed by the leg- 
islature, with its provisions, its conditions, and different 
limitations, is unconstitutional. 

The proof in the record shows that the plaintiff in 
error was the pastor of the congregation of St. Francis de 
Sales, in the city of Toledo, with which was connected a 
parochial school, attended by many hundreds of children, 
who were educated by teachers paid for by the members of 



520 THE STATE OF OHIO VS. THE EEY. PATRICK F. QUIGLEY. 

tlie congregation. The plaintiff in error way not himself a 
teacher, and his whole relation to this school was a spir- 
itual one, which grew out of the fact that he was the pas- 
tor of the church, with which the school w^as connected. 
It was for refusal to make a report from this school that 
he was indicted. And the proposition that I maintain is, 
that so far as this law affects this parochial school, or any 
other parochial school within the state of Ohio, it is a vio- 
lation of the constitution of the state, and this presents the 
first question that I shall discuss this morning. 

What is the nature of a parochial school? The evi- 
dence gives the court all the information upon that subject 
it may desire. They are schools organized and maintained 
by the members of a congregation for the purpose of fur- 
nishing free education to the children who may live within 
the borders of the parish in which the church is estab- 
lished. They are not supported by public taxation. They 
receive no public aid. They are maintained by the volun- 
tary contributions of the parents who desire in that way to 
educate their children. They are the agencies and the in- 
strumentalities of the parents in discharging the duty 
which has been devolved upon them, to educate their 
children as a result of the assumption of paternal and pa- 
rental obligation. They represent the parents. They 
stand for them. They possess their functions. They are 
the parent, so long as, with the parent's consent, the 
children remain within their jurisdiction. 

Now, the second question which presents itself is. What 
is the effect upon this system of parental and parochial 
education, superinduced by the provisions of this law ? 
The very first section, in its first phrase, prescribes that all 
parents, guardians, and other persons who have the care 
of children, shall instruct them, or cause them to be in- 
structed, in spelling, reading, writing, English grammar, 
geography, and arithmetic. The basil foundation proposi- 
tion of the bill begins with a prescription of the course of 
education to the parochial schools. It prescribes the age 



THE STATE OF OHIO VS. THE KEV. PATRICK F. QUIGLEY. 521 

at which the children shall attend them, and the length of 
time in each year that they shall devote themselves to 
study. In cases where scholars ask to be excused from 
attendance for the reasons that are set forth in this stat- 
ute, the validity of the excuse is not to be passed upon by 
the teachers of the parochial school, but by the superin- 
tendent of the public schools, or the board of education. 
No person under the age of fourteen years can be employed 
unless he makes proof that he has completed the usual 
course of the primary and grammar grades, which proof is 
to be furnished to the employer, and a record of which is 
to be kept by him, and it is to be subject to the inspection 
of the truant officer, who is appointed by the board of edu- 
cation under the provisions of this law. No minor, over 
the age of fourteen, and under the age of sixteen years, 
who cannot read and write English, can be employed more 
than half the time, unless he produces a certificate from 
the superintendent of schools, or the board of education, 
to the effect that he can read and write English. Truant 
officers, appointed by the board of education, are to exam- 
ine into all cases of truancy, when requested to do so by 
the board of education, or the superintendent of public 
schools. They are given visitorial powers over all the 
schools within the commonwealth, and they are to perform 
such services in all schools as the board of education shall 
prescribe, which may be necessary for the preservation of 
the morals and good conduct of school children. 

The principals and teachers of parochial schools are re- 
quired to make reports, which shall be the basis for all this 
action, which the board of education is authorized to take. 

If your Honors please : With the exception of the em- 
ployment and discharge of teachers, and possibly the deter- 
mination of the text-books that can be used, I do not know 
under this law what power the board of education can exer- 
cise in the public schools that it cannot exercise in these 
parochial schools. It may prescribe the course of study, 
regulate the attendance of scholars, ^^ the limits for the 



522 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

study, determine tlie excuses for non-attendance, provide 
for the discipline of tlie scholars and for the preservation 
of their morals and good conduct, and through these truant 
officers may exercise visitorial powers over the schools 
maintained by the congregations, as well as over the schools 
maintained by the state. 

If your Honors please : The effect of all this, in my 
judgment, is to operate as the abrogation of the right of 
parents to educate their children. It puts them under a 
control, to which the parent has not assented ; it subjects 
them to officers whom they have not chosen ; it places them 
under a jurisdiction which they have not selected. It is 
not merely an assertion of the right on the part of the state 
to educate the child, but it is an interference with, and a 
destruction of, the right of the parent to control the educa- 
tion of the child. It is a denial and subversion of the doc- 
trine and right of paternal education, and when I remember 
that nearly a century has elapsed in Ohio, without any such 
power ever having been attempted to be given to boards of 
education over private and j^arochial schools, I shall, until 
the highest judicial tribunal in this state otherwise deter- 
mines, believe that the law is in contravention in some way 
of some fundamental right of the citizen, as well as of the 
fundamental organic law of the state. 

My first proposition upon the question of the constitu- 
tionality of the law is that it is unconstitutional because it 
abridges and interferes with the natural right of the parent 
to educate the child. By the natural law, independent of 
society and government and social compact, it is the 
natural duty and right of the father to educate the child, 
and as necessarily connected with that duty is the natural 
right to control the child during the process of education. 
I shall not refer to the many authorities which have been 
cited by my associate counsel. Judge Dunne, upon the sub- 
ject, as to whether or not, by the natural law, the parent 
has the right, and the duty, and the power, to educate the 
child. He cites most of the patristic, and mediaeval, and 



THE STATE OF OHIO VS. THE EEY. PATKICK F. QUIGLEY. 523 

Catholic authorities bearing upon that subject. I desire 
only to add to what he has said, what has been said by the 
great Protestant commentator on the Law of Nations, Puf- 
fendorf. 

In book 6, chap. 2, he says : " Having premised this 
caution, we go on to the main business before us, and first 
of all we think it may be settled as undoubted truth that 
the act of generation doth yield an occasion to the acquir- 
ing a right over the child, which shall hold good, not only 
against other persons who have not the same claim of par- 
entage, but likewise any pretension that can be made in 
behalf of the child itself." 

Then again, in section 6 of the same chapter and book : 
** The power which a father enjoys on the bare score of his 
being a father, inasmuch as it accrues to him as a necessary 
means of discharging the obligation towards his issue which 
nature lays upon him, must consequently be so great as 
sufficiently to answer and effect that design. Now, the 
obligation or duty of a father, as such, chiefly turns upon 
this general performance, that he duly educate his chil- 
dren ; that is, nourish, protect, inform, and govern them in 
order to the rendering them useful to themselves and 
others till they are able to consult their proper benefit and 
are grown masters of their own wills and actions." 

This natural right of the parent to educate the child is 
an inalienable one. It inheres in the parent. It may be 
lost by crime, or it may be abridged by punishment for 
crime, but it stands like the right to life and liberty itself, 
and can be limited or abridged only upon the same princi- 
ciples that they may be. Neither can it be contravened by 
civil law. 

I read from Puffendorf again, where it is said, chap. 1, 
book 8, sec. 2 : 

" But indeed here it should be before supposed that 
when men enter into civil societies they have already a 
competent knowledge of the law of nature, and that one of 
the chief ends of erecting commonwealths was that the, 



524 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

laws of nature upon which the common peace of mankind 
is established might be exercised with security. And in 
short, that there is nothing in the laws of nature that is in 
any way repugnant to the nature and end of civil society ; 
but on the contrary that, they tend entirely to assist and 
promote it. And therefore, when men formed themselves 
into civil societies and obliged one another by compact 
to obey the civil laws, we must suppose that they took it 
for granted that nothing would be established by the civil 
laws which was contrary to the natural, and that the par- 
ticular advantages of the commonwealth could not be con- 
trary to the common end of all government, and thus it is 
possible that the civil law might be made in opposition to 
the natural, but no man in his wits would ever attempt to 
make such a law, unless he resolved to ruin and overturn 
the commonwealth." 

In this view another great Protestant writer upon nat- 
ural law, Burlamaqui, says on page 132 of his work entitled 
" The Principles of Natural and Politic Law " : " We have 
already observed that the laws of nature, though estab- 
lished by the Divine will, have not the effect of an arbitrary 
dispensation, but have their foundation in the very nature 
and mutual relations of things ; hence it follows that nat- 
ural laws are immutable and admit of no dispensation. 
This is also a proper characteristic of these laws which 
distinguishes them from all positive laws, whether Divine 
or human." And this chapter is concluded by a passage 
from Cicero, preserved by Lactantius : " Right reason, says 
this philosopher, is indeed a true law, agreeable to nature, 
common to all men, constant, immutable, eternal. It 
prompts men to their duty by its commands, and deters 
them from evil by its prohibitions." 

Judge DiCKMAN : How far has a man the natural right 
by the law of nature to keep a child in ignorance any more 
than he has to keep him naked ? 

Mr. HuRD : !By the law of nature the whole question of 
the education of the child, by the authorities that I have 
cited, is left to the parent. * You may by the law of society 
punish the parent if he neglects the duty which the law of 



THE STATE OE OHIO VS. THE REVi PATRICK P. QUIGLEY. 525 

nature has imposed upon liim, but the proposition I main- 
tain is that the law which provides for the punishment ol 
the parent or for the punishment of the child in the way in 
which this law seeks to do it is not constitutional, but is 
fundamentally wrong. I maintain that the truant officer 
cannot and should not interfere with the education of chil- 
dren whose parents are doing the best they can to instruct 
them, and I am laying it upon this ground that the natural 
law imposes this duty, and that this natural law, when the 
parent is attempting to perform it, cannot be altered or 
abridged, which I claim is the whole effect and result and 
substance of this law so far as, for example, the parochial 
schools of Toledo are concerned. But I again refer to the 
strong language of Cicero in speaking of the natural law^ : 
" It is not allowed to retrench any part of this law nor to 
make any alterations therein, much less to abolish it en- 
tirely. Neither the senate nor the people can dispense 
with it nor does it require any interpretation, being clear 
of itself and intelligible. It is the same at Eome and 
Athens ; the same to-day and to-morrow. It is the same 
eternal and invariable law given at all times and places to 
all nations ; because God, who is the author thereof, and 
has published it himself, is always the sole master and 
sovereign of mankind. Whosoever violates this law re- 
nounces his own nature, divests himself of humanity and 
will be rigorously chastised for his disobedience, though 
he were to escape what is commonly distinguished by the 
name of punishment." 

And so far as I have been able to ascertain there is not 
one duty of the natural law or one right of the natural 
law more universally recognized by all writers upon the 
subject than the right and the duty of the parent to edu- 
cate his child, and my conclusion, if your Honors please, is 
that even if the constitution of Ohio authorizes such an 
act as abridges and interferes with this right of education 
which the parent is attempting to exercise under the par- 
ticular circumstances of his life, and as they have passed, 



526 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

it is void for the reason that neither the senate nor the 
people, the people in organizing themselves into society 
and forming their organic law, neither they nor any of 
them, nor all, can work the abrogation of this natural right 
and natural duty, which I insist is the result of this legis- 
lation. 

Judge DiCKMAN : i would like to make one inquiry of 
counsel : the father, for instance, by the law of nature 
would be required, wouldn't he, to support his child, to 
protect him from the cold, and to feed him and clothe him ? 
Now, how far would the Legislature have the right in aid of 
the law of nature to make laws enjoining that duty upon the 
father and compelling him to perform it ? 

Mr. HuED : The obligation to perform arises in the law 
of nature. There is no doubt about that, and I shall come 
to that in a moment, and as far as the establishment of 
public schools is concerned, shall attempt to show just 
what limits of legislative power there are in assisting this 
parent, charged with the natural duty, to enforce and 
perform it. 

But I say, the constitutiort itself has not undertaken to 
supersede this right of natural law. The power vested in 
the general assembly must be derived from either the 
general grant of legislative power, or from the special grant 
contained in the constitution on the subject of education. 
The general grant of legislative power is, that the legisla- 
tive power of this state shall be vested in a general as- 
sembly. In substantially the same language this grant 
was made under the constitution of 1802. The rules of 
construction upon this subject are well settled, not only in 
Ohio, but everywhere, when you are construing this 
grant of legislative power conferred by the state constitu- 
tion. 

All legislative power, not that merely which is desig- 
nated by the constitution, but all legislative power is 
granted to the general assembly, and the only question 
is, when this matter comes to be considered, whether or 



THE STATE OF OHIO VS. THE REV. TATKICK F. QUIGLEY. 527 

not a particular power that is exercised is within the scope of 
the general legislative power. In determining that question, 
as the authorities which I have set forth in my brief will 
show, the history of legislation, the nature of legislative 
power, and the proceedings upon that subject are all to be 
considered, and if in view of the history and of all legisla- 
tion upon that subject it is found that it was never understood 
that a particular power was within the scope of ordinary 
legislative authority, then the power cannot be exercised. 
It is not necessary that you shall look alone, or that you 
shall be confined to the special provisions of the constitu- 
tion to see what are the limitations upon that power. They 
may arise from clear implications ; they may arise from 
enumeration in the bill of rights ; or they may arise from 
the indefeasible and inalienable nature of the subject as to 
which the proposed legislation assumes to act. 

Now, at common law no such thing was known even as 
public education, as we have it in the United States. At 
the time of the foundation of our government the only 
public schools they had — those which were called public 
schools — were the mere colleges and academies to which 
parents sent their children for education. Blackstone lays 
it down that the duty of education, so far as it is to be per- 
formed in the condition of society, is one of imperfect legal 
obligation. And Mr. Walker, in his American Laio^ on 
page 217, says, speaking of this subject: "Next as to pro- 
tection, a parent may certainly go as far in defending his 
children from harm as in defending himself. The law 
permits him to do so, but it does not undertake to compel 
him to do so, or punish him for not so doing. Lastly as to 
education the same is true. A parent of the most un- 
bounded means may, in spite of the law, bring up his 
children in the most deplorable ignorance. The truth 
therefore is, that they are not matters of legal obligation ; 
the law has left them to the strong impulses of natural 
affection." 

The civil law, therefore, both at common law and in 



528 THE STATE OF OHIO VS. THE REV. PATEICK F. QUIGLEY. 

this country by legislative enactment, until very recently, 
had left this whole question of education to the strong im- 
pulses of natural affection and to the duty devolving upon 
the parent by virtue of being a parent, as a result of the 
natural law. 

In Ohio the first legislation we had upon this subject is 
found in 2 Chase, p. 833 and 898. That provided that the 
money realized from the sale of section 16 in the different 
townships which had been granted for the purpose of edu- 
cation to the state should be divided amongst the scholars, 
or the teachers of the scholars in each school district, ac- 
cording to the enumeration. This money, this fund, by 
the first law of the territory on the subject, was divided 
pro-rata among the scholars of the state, without regard to 
whether they were scholars of religious or private schools. 
The fund was first to be so divided. Afterwards in 1825 
the common school system was established, and in the 
preamble of the first common school act in the state it 
was said: "Whereas it is provided by the constitution of 
the state that schools and the means of instruction shall 
forever be encouraged by legislative provision, therefore 
be it enacted that this common-school system be created." 
It wasn't derived from the general grant of legislative 
power. They took occasion when they established the 
common school system in the first instance to say that the 
power was exercised under this provision of the constitu- 
tion which authorized the state to encourage by legislative 
provision the means of instruction. 

Since the adoption of the constitution of 1851, the 
legislation has been similar, only the common school 
system which was then established has been amplified and 
extended and its efficiency increased. The schools created 
in Ohio simply provide means of education of which the. 
parents may avail themselves if they desire. The schools, 
when parents send their children to them, were not the agents 
of the state, but of the parents in the work of education. 
This is the theory on which the whole common school 



THE STATE OF OHIO V5. THE EEV. PATRICK F. QUIGLEY. 529 

system of Ohio has been erected. And so I say, if your 
Honors please, neither at common law nor under the con- 
stitution of 1802 nor under^ the constitution of 1851 was 
it ever thought that the state had the right to educate 
the child. Everywhere and in all of these instances the 
natural right of the parent to perform this duty was 
assumed. The whole office of the state was to furnish 
the means of education of which the parents might 
avail themselves if they so desired, but no legislative 
enactment declared that the Legislature should have con- 
trol of private education, no constitutional provision so 
declared, and I therefore maintain with all this history, 
with all this experience of ages upon this subject, that 
when this general grant of power was made in the con- 
stitution of the State of Ohio it was not intended to include 
power over private education, such as has been attempted 
to be exercised by the act whose provisions I am dis- 
cussing. 

There is in the constitution a special provision on the 
subject of education which is as follows : " The general 
assembly shall make such provisions by taxation or other- 
wise as with the income arising from the School Trust 
Fund will secure a thorough and efficient system of com- 
mon schools throughout the state." This provision, if 
your Honors please, is granting the power. It is not a 
power already existing, that is recognized, nor is it a lim- 
itation upon the existing power. If a grant of power, then, 
even if independently of it, such power might have been 
derived from the general grant of legislative authority, the 
special grant will be held to be exclusive. This view is 
based upon the theory that when a specific power over a 
particular subject is given, it will be presumed to be ex- 
clusive, and withdraw the subject from a mere general 
grant of power. This doctrine has been recognized in two 
cases in the State of Ohio. First is the case of The State 
against Frame, as to the liquor laws, and the second is the 



530 THE STATE OF OHIO VS. THE KEV. PATEICK F. QUIGLEY. 

case of Reeves against the Treasurer of "Wood County, 8 
0. S., page 339. 

The constitutional provision under discussion was sec- 
tion 6, Article XIII., which is as follows: "The general 
assembly shall provide for the organization of cities and 
incorporated villages by general laws, and restrict their 
power of taxation, assessment, contracting debts, and loan- 
ing their credit, so as to prevent the abuse of power." 

The court say : " It is urged in argument that inasmuch 
as the power of authorizing assessments is distinct from 
taxes proper, is by the language of the constitution recog- 
nized only in connection with its exercise by cities and vil- 
lages, therefore under the maxim, expressio unius, etc., the 
power of the Legislature to authorize assessments must be 
limited to its exercise by cities and villages. This argu- 
ment would be entitled to great weight and, at the same 
time, conclusive weight, if the clause of the constitution re- 
ferred to contained, or was intended to express, a grant of 
the power of assessment, as distinct from that of taxation 
proper. In that case, a grant being in terms limited, the 
maxim, expressio unius, would fairly apply, and all implica- 
tions of power beyond the terms of the grant would be held 
to be exclusive. But such is not the case. The clause of 
the constitution does not contain, nor is it intended to ex- 
press, any grant of the power of assessment. It merely 
mentions the power of assessment as an existing power, 
and does this simply in a mandate upon the Legislature to 
restrict its exercise and provide against its use by cities 
and villages." 

The same doctrine is laid down in the case of The State 
against Frame, 39 0. S. 420, which is referred to in my 
brief. Now, the point that I make is that the whole power 
of the Legislature over the subject of education is found in 
this special clause of the constitution upon the subject, and 
that this power does not go beyond the providing of an ef- 
ficient system of public or common schools, and that when 
they go beyond that to interfere with the private or paro- 



THE STATE OF OHIO VS. THE REV. PATEICK F. QUIGLEY. 531 

chial schools they are exercising a power which is denied 
them by the very enumeration, expressly of the power that 
is given to them, and it is plain to discover what the bound- 
ary line of demarcation shall be where the sole object is to 
make an efficient system of public schools, to regulate and 
control the discipline of those schools, and to provide how 
the children who go there shall come there. Where the 
object, I say, in the language of the constitution, is to make 
that system efficient, then the law may be within the scope 
of legislative authority, and that is a law which has been 
on the statute-books of Ohio for nearly a century, and that 
is the kind of legislation, until 1889, that all of our law- 
makers in Ohio thought that they had the power to enact, 
nobody assuming, until an imperfect law was proposed in 
1877, that under this power of education and to provide for 
public schools, they had the power to step in and inter- 
fere with and control the parochial schools, as this law 
does. 

Mr. "Watson : Do you claim that because the power is 
not exercised, therefore it is unconstitutional when it is 
exercised ? 

Mr. HuED : I do not say that, but I say this — I will an- 
swer your question by reading from People v. Purdy, 
2 Hillj pages 39 and 40. The court, in discussing the effect 
of no legislation on a particular subject in determining 
whether such legislation is constitutional, said : " These 
legislative precedents are entitled to the more consideration 
from the fact that they are disclaimers of power, such as 
public bodies do not usually make, where there is any fair 
and reasonable ground for maintaining their authority." I 
do not say that it is thereby unconstitutional, biit it is a 
strong and persuasive argument upon that point. Just as 
Judge Okey says in The State v. Frame, 39 0. S. 420, per- 
haps in a dissenting opinion, but I do not think that affects 
his remarks : " For more than thirty years after the adop- 
tion of the constitution, no statute in principle like the 
act of 1883 was passed. This of course is not conclusive 



532 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

against the existence of the power so to legislate, but it 
must be remembered that during all that time the subject 
was constantly agitated, and the absence of legislation of 
this character affords evidence that the general opinion was 
against the authority to pass such an act." And that is all 
that I claim from the absence of legislation in this case. 
There was no legislation in England attempted, even under 
the omnipotent powers of Parliament, until 1870, and it has 
not been finally decided there whether Parliament has the 
power to pass such a law as this. In the other states of 
the Union it is only recently that this legislation has been 
attempted, in some states under a provision of a constitu- 
tion different from our own. It is only within three years 
that it has been attempted here, and this is the first case 
that has arisen under the act, and this is the first time, as 
far as I am aware, that the attention of this tribunal has 
been brought to the question, and, being a new one, I have 
to derive my arguments from every source I can. 

Again, I say the law is unconstitutional because it in- 
flicts penalties upon a parent and child for crime without 
giving them the right of trial by jury. Section 4 of the act 
imposes upon the parent the duty to send to school his 
child, under the age of 16 years, who has been discharged 
from a business in order to afford an opportunity to receive 
instruction, and fixes as a penalty for the violation of this 
section and section 1, that each parent shall on conviction 
be liable to a fine of not less than $5 nor more than $20 for 
the first offence, and not less than $20 for each subsequent 
offence, or imprisonment for not less than one month nor 
more than three. And the poor child is taken before one 
of these magistrates, and if he is found to be a truant, then 
it is within the power of the magistrate to declare him to be 
a juvenile disorderly person, and thereupon shall commit 
said child to some juvenile reformatory, provided that no 
child or children over ten years shall be sentenced by any 
court to a county children's home, and that where, in the 
judgment of the trustees of any such home, it shall be de- 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 533 

clared by a resolution at regular meeting by them held that 
the character of any child thus sentenced and kept at such 
home is vicious and so bad as to be detrimental and hurt- 
ful to the habits and good morals of other children at such 
home, said trustees are hereby authorized and empowered 
to remove such child or children to the Boys' Industrial 
School at Lancaster, Ohio, or the Girls' Industrial Home at 
Delaware, Ohio, as the case may be, where he or she is to 
be confined, or may be confined, if over eight years, until 
they are fourteen years of age. 

Section 11 provides that mayors, justices of the peace, 
and probate judges shall have jurisdiction to try the offences 
described in this act, and their judgment shall be final. 

One of the points argued in the brief is as to whether 
that jurisdiction is exclusive. I maintain that it is ; I do 
not propose to discuss it now, but, whether it is concurrent 
or exclusive, so far as the power of this officer is concerned 
to imprison or sentence the child to imprisonment in this 
industrial home or juvenile reformatory, it is unconstitu- 
tional, because there is no provision for trial by jury. This 
court has determined in the case of Inwood v. The State 
that the section of the law giving summary jurisdiction to 
magistrates, whereb}^ imprisonment was the penalty to be 
inflicted, was unconstitutional. So far as the child is con- 
cerned I maintain that this act is likewise unconstitutional, 
because the substance of what is done to the child is to in- 
flict punishment upon it. 

A very similar question arose before the Supreme Court 
of Illinois in the case of People v. Turner, 55 III. 280, upon 
a writ of habeas corpus where a child was being taken out 
of imprisonment, where for the public good and his own 
good, and generally for the benefit of society, he had been 
confined, the terms of the law being very much like ours. 
The court say: *^If a father confined or imprisoned his 
child for one year, the majesty of the law would frown upon 
the unnatural act. Can the state, as parens patrice, exceed 
the power of the natural parent, except in punishing crime ? 



534 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

These laws provide for the safe-keeping of the child ; they 
direct his commitment, and only a ticket of leave or the 
uncontrolled discretion of a board of guardians will permit 
the imprisoned boy to breathe the pure air of heaven out- 
side his prison walls, and to feel the instincts of manhood 
by contact with the busy world. The mittimus terms him 
* a proper subject for commitment,' directs the superinten- 
dent to * take his body,' and the sheriff indorses upon it, 
'executed by delivering the body of the within-named pris- 
oner.' The confinement may be from one to fifteen years, 
according to the age of the child. Executive clemency can- 
not open prison doors, for no offence has been committed. 
The writ of habeas corpus, a writ for the security of liber- 
ty, can afford no relief, for the sovereign power of the state, 
as parens patrice, has determined the imprisonment beyond 
recall. Such a restraint upon natural liberty is tyranny and 
oppression. 

" If, without crime, without the conviction of any offence, 
the children of the state are to be thus confined for the 
good of society, then society had bettar be reduced to its 
original elements, and free government acknowledged a 
failure. 

" Nothing could more contribute to paralyze the youth- 
ful energies, crush all noble aspirations, and unfit him for 
the duties of manhood. Other means of a milder charac- 
ter, other influences of a more kindly nature, other laws 
less in restraint of liberty, would better accomplish the re- 
formation of the depraved, and infringe less upon inalienable 
rights." And they decided the law to be unconstitutional. 

The circuit court, in reference to this Illinois decision, 
thinks that a different view upon the point decided had 
been approved by the supreme court of this state, in Pres- 
cott V, State, 19 0, S. 184, and Cincinnati House of Eef- 
uge V. Eyan, 37 0. jS. 197. In the first case the grand jury of 
Van Wert County had certified to the court of common pleas 
that one Prescott, being of the age of 14 years, was a fit 
person to be sent to the reform farm. This was done under 



THE STATE OF OHIO VS. THE ( REV. PATRICK F. QUIGLEY. 535 

a section of the law quoted in the opinion of the court as 
follows : " If any accusation of the commission of any crime 
shall be made against any infant under the age of sixteen 
years before any grand jury of the county, . . . and the 
charge appears to be supported by evidence sufficient to 
put the accused upon a trial, the grand jurors may in their 
discretion, instead of finding an indictment against the 
accused, return to the court that it appears to them that 
the accused is a suitable person to be committed to the 
guardianship of the directors of the house of refuge, and 
the court shall thereupon order such commitment." 

It was objected that this section was invalid because it 
deprived the defendant of his right to trial by jury. The 
court says : " The provision referred to in our state consti- 
tution relates to the preservation of the right of trial by 
jury, and to the rights of the accused in criminal prosecu- 
tions. We do not regard this case as coming within the 
operations of either of these provisions. It is neither a 
criminal proceeding, nor a proceeding according to the 
course of the common law, in which the right of trial by 
jury is guaranteed." 

But in the case of the children violating the law, the 
proceedings are called prosecutions, the hearing is a trial, 
the result is a conviction of crime, and the imprisonment is 
a penalty upon such conviction. It is a case in which at 
common law a jury was provided, and it seems to be clearly, 
in the view of the supreme court in the case cited, within 
the class of cases in which a jury is guaranteed by the con- 
stitution. 

The same remarks may be made of the case of House of 
Eefuge V. Ryan, 37 0. S. 197. It was a case of habeas corpus 
in which the father sought to secure the custody of his chil- 
dren, who had been, without a trial by jury, consigned to 
the keeping of the directors of the house of refuge, on the. 
ground that they were without home and homeless. 

The court said : " The commitment is not designed as a 
punishment for crime, but to place deserted, neglected, and 



536 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEYo 

homeless children and those who are in danger of growing 
up as idle and vicious members of society under the guar- 
dianship of public authorities for their proper care, and to 
prevent crime and paupers." But, if your Honors please, 
you cannot fail to observe the difference between this stat- 
ute and those construed by the supreme court in the case 
to which I have referred. The child is arrested and 
brought before the magistrate, and upon conviction he is 
declared to be guilty of a misdemeanor, and after convic- 
tion thereof shall be punished by a fine. Here is a prose- 
cution, a trial, a conviction, and a sentence. The child is 
adjudged by the officer to be guilty of a misdemeanor. It 
is a case where, at common law, he would be entitled to a 
trial by jury, providing it imposes, by way of punishment 
lor his offence, imprisonment. I am satisfied that the 
court will come to the conclusion, upon an examination of 
these sections, that they inflict punishment by imprison- 
ment without granting the right to trial by jury, and that, 
as these two sections are designed to accomplish the very 
object that the law itself is intended to secure — namely, 
compelling the parent by fine and the child by imprison- 
ment to conform to its provisions — it will not be supposed 
that the Legislature would have passed the law without 
those provisions, and therefore the vice of these sections 
overturns the whole law. 

Judge MiNSHALL : Is the validity of these sections neces- 
sarily involved ? 

Mr. HuED : I think so. If your Honors please, the 
basis of the action of the board of education, in order to 
maintain these provisions, so far as parochial schools are 
concerned, is very largely the reports which are required 
to be made by the superintendents and principals to the 
board of education. The point I make is that the whole 
law is so interwoven and so interlapped in its provisions 
that you cannot throw out these two important sections 
without overturning the law itself. There is nothing left 
in the law, if these two provisions are stricken out, to give 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 537 

it force or effect; and if they are unconstitutional they 
must necessarily go out, and then the whole law should fail 
until the Legislature has wisdom enough to pass a law that 
is constitutional in all its parts. 

I desire to call your Honors' attention, in conclusion, 
not to a legal authority, but to an article by Herbert Spen- 
cer, in which, from a standpoint entirely different from that 
of my client, he reaches precisely the same conclusion : 
that compulsory education laws ought not to be passed 
and are a danger to liberty, society, and civilization. He 
says in an edition of the Popular Science Monthly: "But 
surely the society in its corporate capacity, guided by the 
combined intelligences of its best members, may with ad- 
vantage frame a conception of an individual nature best 
fitted for harmonious industrial life, and of the discipline 
calculated to produce such a nature. In this plea there is 
tacitly assumed the right of the community through its 
agents to impose its scheme — an assumed right quite in- 
consistent with the conclusions drawn in foregoing chap- 
ters. But, not here dwelling on this, let us ask what fitness 
the community has for deciding on the character to be de- 
sired and for devising means likely to create it. 

Whether the chosen ideal of a citizen and the chosen 
process for producing him be good or bad, the choice in- 
evitably has three implications, any one of which condemns 
it. 

The system must work toward uniformity. If the 
measures taken have any effect at all, the effect must, in 
part, be that of causing some likeness among the indi- 
viduals. To deny this is to deny that the process of 
moulding is operative. But in so far as uniformity results 
advance is retarded. Every one who has studied the 
order of nature knows that without variety life would 
never have evolved at all. The inevitable implication is 
that further progress must be hindered if the genesis of 
variety is checked. 

Another concomitant must be the production of a pas- 



538 THE STATE OF OHIO VS. THE REV. PATRICK E. QUIGI EY, 

sive receptivity of whatever form the state decides io im- 
press. Whether submissiveness be or be not part of the 
nature which the incorporated society proposes to give its 
units, it cannot enforce its plans without either finding or 
creating submissiveness. Whether avowedly or not, part 
of the desired character must be readiness in each citizen 
to submit, or make his children submit, to a discipline 
which some or many citizens determine to impose. There 
may be men who think it a trait of high humanity thus to 
deliver over the formation of its nature to the will of an ag- 
gregate mostly formed of inferior units. But with such we 
will not argue. 

One further necessary implication is that either there 
exists no natural process by which citizens are in course of 
being moulded, or else that this natural process should be 
superseded by an artificial one. To assert that there is no 
natural process is to assert that, unlike all other beings 
which tend ever to become adapted to their environments, 
the human being does not tend to become adapted to his 
environments — does not tend to undergo such changes as 
fit him for carrying on the life which circumstances require 
him to lead. Any one who says this must say that the 
varieties of mankind have arisen without cause, or else 
have been caused by governmental action. Any one who 
does not say this must admit that men are in course of 
being naturally adjusted to the requirements of a developed 
social state ; and if he admits this, he will hesitate before 
he asserts that they may be better adjusted artificially. 

Let us pass now from these most abstract aspects of 
the matter to the more concrete aspects. 

It is decided to create citizens having forms fit for the 
life of their society. Whence must the conception of a fit 
form be derived ? Men inherit not only the physical and 
mental constitutions of their ancestors, but also in the 
main their ideas and beliefs. The current conception of a 
desirable citizen must therefore be a product of the pastj 
slightly modified by the present; and the proposal is that 



THE STATE OF OHIO VS. THE REY. PATRICK F. QUIGLEY. 539 

past and present shall impose their conception on the 
future. Any one who takes an impersonal view of the 
matter can scarcely fail to see in this a repetition, in 
another sphere, of follies committed in every age by every 
people in respect of religious beliefs. In all places and 
in all times the average man holds that the creed in which 
he has been brought up is the only true creed. Though it 
must be manifest to him that necessarily in all cases but 
one such beliefs held with confidence equal to that which 
he feels are false, yet, like each of the others, he is certain 
that his belief is the exception. A confidence no less 
absurd is shown by those who would impose on the future 
their ideal citizen. That conceived type which the needs 
of past and present times have generated, they do not 
doubt, would be a type appropriate for times to come. Yet 
it needs to go back to the remote past when industrial life 
was held contemptible and virtue meant fortitude, valor, 
bravery ; or to the less remote past when noble means high- 
born, while laborer and villain were equivalents ; or to the 
time when abject submission of each grade to the grade 
above was thought the primary duty ; or to the time when 
the good citizen of every rank was held bound to accept 
humbly the appointed creed; to see that the characters 
supposed to be proper for men were unlike the characters 
we now suppose proper for them. Nevertheless the not- 
very- wise representatives of electors who are mostly igno- 
rant are prepared with papal assumption to settle the 
form of a desirable human nature, and to shape the coming 
generation into that form." 

If your Honors please, I believe that the principle of 
this act is opposed to the underlying principle of our form 
of government. The one means the uplifting of the units 
of which society is composed; the other means their 
absorption in the paternal theory of government and 
imperialism. There is an irreconcilable conflict between 
the provisions of the act and the principles of our free 
institutions. Let this theory on which this law is based 



540 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 

be once engrafted upon our statute-books permanently, 
and then surely, either in the slow advances of insidious 
encroachment or in turbulent revolution, the people will 
find that the substance of free government is gone, and 
that its shadow alone is left. 

And thereupon court took a recess until 2.30 p.m. of 
same day. 

P. M. Session, April 29, 1892. 

Upon the convening of court after the noon recess, 
Chief-Justice Spear said : 

Counsel may proceed with the argument. 

Hon. J. A. Barber, Prosecuting Attorney of Lucas 
County, Ohio, then spoke as follows : 

If your Honors please : The attorney general has filed 
a very exhaustive brief in this case, covering every possible 
question in it, and I will therefore devote twenty minutes 
simply to some supplemental points. 

At the meeting of the Department of Superintendence 
of the National Educational Association in Philadelphia, 
in February, 1891, John Hancock, then State School Com- 
missioner of Ohio, spoke with pride to the able educators 
then and there discussing the subject of compulsory educa- 
tion of the position that Ohio had taken in the matter. 
Said he, " Ohio has a- compulsory law that compels. The 
law was passed in 1889 by the unanimous vote of both 
branches of the general assembly, having both the great 
political parties at its back. And better still," said he, 
" in its enforcement there has been no division of senti- 
ment on religious lines, all denominations, with rare in- 
dividual exceptions, giving it a hearty support." 

No words could be truer; all the best minds of all 
religions, with few exceptions, commend this law. It is a 
matter of public knowledge that this defendant is the only 
man in the city from which this case came that defied the 
law. 

The principles and the features of this law are all old. 
Compulsory education is not new. This law with its fines 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 541 

and penalties, with its duties and prohibitions, with its 
truant officer and his duty, are all borrowed from the New 
England States, and have been in force there a great many 
years. The standard of the compulsory laws is higher 
there than here. More weeks of school are required, and 
all the provisions are more rigid. 

Upon the continent of Europe compulsory education has 
existed for many generations. Prussia, Germany, Saxony, 
Wurtemberg, Baden, and other states have long followed 
the coercive system, and have thereby elevated their people 
to a high plane of intelligence. 

Kent says that the first legal provision of enforcement 
was begun in this country in 1647 by Massachusetts. " The 
compulsory system upon parents and masters to teach their 
children and servants to read was enforced by fine in Mas- 
sachusetts, by act of 1642, and in Plymouth Colony Laws in 
1671." (Kent, vol. 2, p. 196.) 

If you will turn to 16 Mass., p. 141, you will see that 
the people of the town of Dedham, Mass., were indicted, 
tried, convicted, and fined for neglecting to keep and sup- 
port a grammar school. 

The whole scheme of public education has been one of 
slow growth and evolution, and the principle of compulsion 
is present at every stage. Compulsory taxation is at the 
very found^ition of it. Every man is compelled to pay a 
tax for the support of the public school. I can see no 
answer to the argument that the citizen who is compelled 
to pay taxes for educating the youth may reasonably 
demand that the state compel the result for which it taxes 
the money. The principle of compulsion is seen in requir- 
ing all teachers to have certain qualifications and requiring 
a certificate of moral and mental fitness. In many states, 
cities, towns, and townships are compelled to furnish free 
text-books. This law of Ohio, that was passed by the 
unanimous votes of the Legislature of 1889, is but a supple- 
mental provision for enforcing a traditional principle that 
every child should have an education. In the same year 



542 THE STATE OF OHIO VS. THE RBV. PATRICK F. QUIGLEY. 

in wliicli this law was passed, tire Legislature of Illiiioig* 
passed a compulsory educational act that is almost identical 
with this, and we are told by the educators of that state 
that it is producing magnificent results. 

Of course the great point in this case is the constitution- 
ality of the law. No tribunal has ever yet decided com- 
pulsory education to be unconstitutional ; I pray that no 
tribunal may ever so decide. There never was a graver 
crisis in the history of free education than now, if this court 
is to annul this righteous law. Among the very last utter- 
ances of Hancock, who had so much to do with the enact- 
ment of the law and the development of it, was that "the 
law means that hereafter no boy or girl shall be born within 
the borders of Ohio and permitted to grow up without hav- 
ing an education, and thus to good citizenship will be saved 
the waifs and outcasts of society." 

To hold compulsory education laws, together with the 
necessary provisions and penalties for carrying them out, 
to be unconstitutional — to decree this law, here and now 
in splendid operation all around us, to be null and void, 
would be the greatest calamity that could befall not only 
our commonwealth, but the cause of education through- 
out this land. All the other questions raised in the record 
are insignificant. The contention that the parochial school 
is not a private school, within the meaning of *the law, is 
without merit. Mr. Hurd with all his ability cannot handle 
the point without contradicting himself. On page 10, where 
he declares that parochial schools are not private schools, 
he frames a definition of a private school. " By private 
schools are meant those schools which are conducted by 
teachers who are employed and paid for by parents desir- 
ing to educate their children." On page 15 he frames a 
definition of a parochial school. " Parochial schools," he 
says, " are maintained without public aid ; they are private 
institutions (' private institutions ' is good ; he changes 
'schools' to * institutions ') designed by the parents them- 
selves for the purpose of performing the natural duty of 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 543 

the parental relation. They are subject to the control of 
the private individuals whose moneys contribute the fund, 
out of which their support comes. '^ Private schools are 
schools supported by private funds. Parochial schools are 
institutions supported by private funds. The definitions 
are precisely alike. It is no better with the other points 
raised by the record. They are to my mind without merit 
and far-fetched. 

It is vehemently argued that this law will end in the 
destruction of private and parochial schools. There is not 
a particle of foundation for such a statement. It is main- 
tained that the law is unconstitutional because it violates 
the conscience rights of Catholics. I deny it. There is 
not a single syllable violating the right of conscience. 
There is not a line restraining the religious liberty of any 
citizen of Ohio. There is no religion in the law. Parochial 
schools are not in the least interfered with. The child is 
not required to attend the public school. He is required 
simply to be educated. He may get his 100 days per 
annum in a parochial school, or in a night school or at 
home. The truant is not run into the public school ; if he 
belongs to Dr. Quigley's school, he is run into his school. 

If the state has the right to enforce education at all, it 
has a right to establish the minimum of education, and to 
that extent the state can require the parochial school to 
furnish the minimum of education. It should be noted in 
reply to one of the propositions laid down by Mr. Hurd 
this morning, that this law vests in the superintendent of 
the parochial school the same power to excuse attendance 
as is vested in the superintendent of the public school. 

Counsel strongly contend that because incorrigible boys 
and girls who are beyond the control of parents and 
teachers and school officers are committed to children's 
homes or other reformatory institutions, and because the 
law uses the word punishment and prosecution and misde- 
meanor and sentence, that the good doctrine laid down 
by this court in the Eyan case, 37 0. S, 197, does not apply 



544 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

here. To bear liim out, he has in all the courts through 
which this case has passed voluminously quoted his Illi- 
nois case of People v. Turner, and read at length from it 
this morning. I cannot find that the case has ever had 
the approval of any court or lawyer in America, except the 
notes of Eedfield, who is a violent and bitter opponent of 
compulsory education. The reply to that argument is that 
the points are not before the court in this case, the doctrine 
of that case is squarely denounced and forever buried by 
this court in the Eyan case. You cannot change the nature 
of things by names and epithets. Jurists look right 
through forms and names to the spirit and principle of 
things. Every judge that has so far passed upon this case — 
and there are few abler minds in our profession than these 
same judges — have been unable to see any difference bje- 
tween the principles of this law and those of the Eyan 
case. If there is a difference, my mind is so constituted 
that I cannot perceive it, and I am therefore helpless. 
This law is remarkable for the care with which it regards 
the rights of the child and the parent. Counsel would 
have you believe that this law is some monster paralyzing 
the energies of childhood, snatching children from the 
arms of parents, and robbing the citizen of his natural 
rights and liberty, and turning him over to barbarism and 
oppression. Imperialism is a word he uses all through his 
brief. Look at the law. That is the best way to find out 
what its provisions are. " All who have the charge of 
children between 8 and 14 shall cause them to be instructed 
in spelling, reading, writing, etc." He must attend some 
school or be educated at home. Physical or mental weak- 
ness is provided for. If the child is poor, the board of 
education must furnish him with schoolbooks free of 
charge. So kind is this law that if any youth is found who 
is dependent upon his own labor for a living, or who shall 
be the support of others unable to provide their own sus- 
tenance, it is made the duty of the truant officer to obtain 
relief from the poor authorities so that the youth can com- 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGXET, 545 

ply witli the law, and the law shall not be enforced against 
such a child unless it refuses the aid so given. The board 
of education is empowered to hire even private instruction 
for those who cannot comply with the law because they or 
their family are dependent upon their daily labor. In 
cases of the truants and idlers who live in the streets and 
are growing up in vice, the law proceeds first against their 
parents or guardians. No fine is applied if the parent or 
guardian puts the child into school. Neither is it applied 
if he shows the court his inability to govern the child. 

Only in a single case is the child committed. Only 
when the father and mother say to Uie court, " We cannot 
control this child," and the child says, " I will do as I 
please ; I will not obey," you have a juvenile, disorderly 
person, which the act defined to be one " who, while at 
any public or private school, is incorrigible, vicious, im- 
moral in co-nduct, who wanders about the streets, acknowl- 
edging no authority whatever." What will you do with 
•that boy ? He has no home, or if he has he will not stay 
there. His parents are telling the court that they can do 
nothing with him. What shall be done ? What is the 
humane thing for the state to do ? What is the duty of 
the state ? Precisely what is said in 37 O. S. It must as- 
su^ne the guardianship and education of the vicious, the 
homeless, and the neglected. Now, this is the only case 
in which a magistrate may commit. Everything else must 
fail. The child must be incorrigible and vicious. The 
law itself recognizes the badiless of these cases, for it 
gives the trustees of children's homes the authority to re- 
move those who are so vicious that they will be harmful 
to the good morals of the other children. It is a notorious 
and well-known fact that all over the state only those 
youths are sent to the children's homes and reformatories 
under this law, where the parents and guardians of the 
child, if without these, then, those in charge of the child^ 
are present in the court beseeching the state to take the 
child and save it, if possible. These powers cannot be 



>, 



546 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

abused. They are most carefully guarded. If the law is 
overstepped the writ of habeas corpus comes at any mo- 
ment like a roaring lion to correct the error. And, as' 
Judge Johnson says in the Eyan case, there needs no 
statute to invest the courts with the power of habeas cor- 
pus in these matters, 

"There need be no apprehension that personal rights 
will be infringed so long as the management of these insti- 
tutions is held to public account." 

Now, one other point I wish to make, and then I leave 
the further oral argument to my associate counsel. 

I want it borne in mind all the time that there is no re- 
ligion, or religious liberty, or restriction in this act. 

Judge Dunne has made a tremendous effort to show 
that the law is in contravention of the natural and inherent 
rights of men. 

The most notable fact about this part of the controversy 
is that among the writers of the Catholic faith there are the 
most widely varying opinions about compulsory education.* 
There are two distinct divisions of Catholic thought and 
opinion on the right of the state to enforce education. The 
judge admits that in the circuit court we came at him from 
authorities within his own camp, and the most of his brief 
in this court is devoted to wrestling with those authorities. 

It is a matter of common knowledge that by far the 
larger portion of the people of this religious faith believe 
in the law and have obeyed it. This very record shows 
that Father McCarthy, who is in the same city, the same 
diocese, under the same boards and bishop,* and whose 
schools are constituted and conducted precisely as the school 
of the defendant, obeyed the law ; and he testified in behalf 
of the state, that over the parochial school the pastor of 
the parish sustains the relation of principal. It is correct 
to state that almost all the American laity and clergy of 
this church repudiate in toto the doctrine submitted to this 
court by Judge Dunne. 

* Sedes vacabat. 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 54^ 

The most illustrious divine in that church to-day in this 
country is Archbishop Ireland. Less than two years ago 
this great Catholic divine delivered an address before the 
National Educational Association at St. Paul. I have not 
time to read at length from that address, but I will ask 
the indulgence of the court while I read six or seven lines : 

" I am the friend and the advocate of the state school. 
In the circumstances of the present time, I uphold the 
parish school. I do sincerely wish that the need of it did 
not exist. I would have all the schools for the children 
state schools." 

" The state must come forward as an agent of instruc- 
tion ; else ignorance will prevail. Indeed, in the absence 
of state action there never was that universal instruction 
which we have so nearly attained and which we deem 
necessary. In the absence of state action, I believe uni- 
versal instruction would never in any country be possible." 

" Accusation has gone abroad that Catholics are bent 
on destroying the state school. Never was there an accu- 
sation more unfounded." " Free schools ! Blessed in- 
deed is the nation whose vales and hill-sides they adorn, 
and blessed the generations upon whose souls are poured 
their treasures. No tax is more legitimate than that which 
is levied for the dispelling of mental darkness, and the 
building up within a nation's bosom of intelligence, man- 
hood, and womanhood. The question cannot be raised, 
How much good accrues to the individual taxpayer ? The 
general welfare is richly served, and this suffices. It is 
scarcely necessaryto add, that the money paid in school tax 
is the money of the state, and it is to be disbursed solely by 
the officials of the state, and solely for the specific pur- 
poses in view of which it was collected. I unreservedly 
favor state laws making instruction compulsory. Instruc- 
tion is so much needed by each citizen for his own sake 
and that of society, that the father who neglects to provide 
for his child's instruction sins against the child and against 
society, and it behooves the state to punish him." 



548 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

Everywhere has this great man proclaimed himself in 
favor of compulsory education. Last year under his ad- 
ministration the parochial schools of Faribault and Still- 
water were transferred to the board of education. He has 
been sustained in his liberal an.d high-minded views by the 
authority of the combined archbishops of this country. 

The Eev. Thomas Bouquillon, D.D., of the Catholic 
University at Washington, who is an eminent scholar, edu- 
cator, and divine, denounces with all the energy at his com- 
mand the conclusion and premises and arguments of Judge 
Dunne. Last year he issued a famous pamphlet on edu- 
cation. Judge Dunne devotes fifty pages of his brief in 
this court to the pamphlet (pages 50 to 100). 

This is the best part of the judge's brief. The sound- 
ness of the argument is better seen by virtue of the attack 
of the judge. Bouquillon says the state has the right to 
educate, to control education, and to compel education. 
'* The state has authority to make parents fulfil this duty 
of educating their children." 

" The state can substitute itself to the parent, if need 
bOj and compel education." 

" The state may determine a minimum of education and 
compel it." 

" In this use of authority the state does but lend a hand 
to the execution of the natural law." 

The Mouthy the leading Catholic publication of London, 
takes the high ground of compulsory education. In the 
issue of August, 1891, it proclaimed aloud, " The principle 
of compulsory education must be conceded." Judge Dunne 
must write another fifty pages, for that paper claims that 
Leo XIIL conceded the principle in his last Encyclical. 

I want right here to commend Leo XIII. as an authority. 
I have b^en led into his writings by this case. And I say 
we have in the present Pope a great, enlightened, and 
liberal mind. He sustains Ireland, Bouquillon, and a host 
of others who have taken a strong stand in favor of the 
American principles. 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 549 

Of course Leo XIII., while conceding the right of 
the state to educate and the duty of the state to enforce 
education, maintains that the schools supported by the 
state and the education enforced by the state must be 
religious and not non-religious. This cannot be blamed in 
a man whose mind is trained in the traditional principles 
that church and state are inseparable. 

I will add but one more authority to show that I am 
right in saying to your Honors, that the doctrines of Dunne 
are denied by the greatest minds of his Church to-day. 

I now cite a supreme authority among Catholics. It 
has the sanction of Cardinal Manning* It has the approba- 
tion of Cardinal Newman. I refer to the dictionary by 
William E. Addis and Thomas Arnold, both fellows of the 
Hoyal University of Ireland. Among other things it says : 
"The state may reasonably require that all its citizens 
should receive that mental and moral training which may 
dispose them to restrain anti-social passions, to obey the 
laws, and, by industry, to promote the public and their 
own welfare." 

On the constitutionality of the law, in addition to all 
that is said by way of written brief and argument, I wish 
to lodge with the court a great constitutional principle 
that was uttered in this case before the defendant was 
born by the greatest constitutional lawyer, except John 
Marshall, that this country has yet produced. I refer to 
the constitutional principle stated hy Daniel "Webster in 
these words : 

" The power over education is one of the powers belong- 
ing essentially to the government. It is one of the powers 
the exercise of which is indispensable to the preservation 
of society. It is the duty of self-protection." 

" The power over education is one of the powers belong- 
ing essentially to the government, indispensable to the 
preservation of society — the duty of self-defence." 

It is higher than statute law ; it is higher than con- 
stitutions. Without any constitutional provisions the 



550 THE STATE OF OHIO VS. THE EEY. PATRICK F. QUIGLEY. 

power exists. It is one of those powers belonging in- 
herently to governments. It is the only means of preserv- 
ing the Republic. 

On this ground Judge Dunne and his authorities con- 
cede the right of the state to give the j'-outh a military 
education. He says the state may compel the child to be 
educated in a military school, for that is the duty of the 
state to preserve its own integrity, and civil government 
can often only preserve its own integrity by the use of the 
sword. 

He endeavors to get a decision from the highest tribu- 
nal in the state in w^hich we live, which rests upon the 
principle that it is right and just and constitutional to 
compel the youth to be educated in the use of the sword, 
but wrong and unjust and unconstitutional to enforce the 
kind of education that will allow the sword forever to rest 
in its scabbard. 

The logical consequences of such argument and prin- 
ciples in its effect upon the state, and upon society, and 
upon human happiness, may be seen if you will cast your 
eyes over the land where Taparelli, Solimani, Cornoldi, 
and most of his other authorities were born and wrote the 
theories upon which he has constructed his argument, and 
compare it with the land wherein the very opposite ideas 
have prevailed. 

Now, if this law is bad, if we are correctly told that to 
enforce it will reduce society into its original elements, 
if the truant officer be an officer who is to strangle the 
impulse of youth, if this be a law of tyranny and im- 
perialism, let the Legislature expunge it from the statute- 
books. 

But, judges, these be hard words, and there are those 
that love the law. There are those who believe that this 
law lifts every child in Ohio, not born idiotic, into a higher 
plane, and breathes into him the spirit and genius of his 
country, and adds to the happiness of the child, and to the 
glory of the state. 



THE STATE OF OHIO VS. THE EEVo PATKICK i\ QUIGLEY. 551 

These, and the educators of Ohio and of the whole 
country, are watching the outcome of this the first case of 
the compulsory principle that has been fought to a finish 
in the highest tribunal of any state. 



Hon. Do K. Watson, on behalf of the defendant in error, 
then said : 

May it please the Couet: The history of this case 
in the courts below your Honors are undoubtedly familar 
with in a general way at least, as it is set out in the record. 
It will be interesting and perhaps instructive, in the dis- 
cussion of so novel and important a case, to allow the 
debate to go beyond what may be considered the legitimate 
domain of the question at issue, and test it by the principles 
of philosophy and moral writers. The distinguished 
gentleman who represents the plaintiff in error has read 
to us from the old masters. But he might have read from 
each of them, if he had been so kindly disposed, something 
that they said, which maintains the sovereignty of the state 
as well as the sovereignty of the parent. For example, 
Avhen he read from Natural and Politic Law by the great 
author of that work, he might have turned to page 251, if 
he had been fair to us, and in the chapter which treats of 
the essential parts of sovereignty, of a government, and 
where the powers and forces and functions of the govern- 
ment must, lie, and quoted the following : 

*' As the prosperity and happiness of a country and the 
stability of its institutions are greatly influenced by the 
intelligence of the people, it is necessary that the govern- 
ment should be vested with the power of establishing pub- 
lic schools." If it is necessary that the government should 
be vested with the power of establishing public schools, is 
it not equally necessary for the accomplishment of this 
purpose that the government be vested with the power of 
regulating the attendance upon its own public schools? 



552 THE STATE OF OHIO VS. THE llEYo PATRICK F. QUIGLEY. 

But, if your Honors please, tliis is a constitutional 
question, and, in sucli a debate, I prefer to rely more upon 
what this court has said through Day, and Mcllvaine, and 
Welsh, than what Cicero, and Puffendorf, and Buralmaqui, 
and other philosophers may have said. The question now 
IS one which arises under the right of the general assembly, 
to do certain things under the grant of legislative power 
contained in the constitutioUo It arises upon the construc- 
tion of the particular act in question, and the constitutional 
test must be made by its provisions. No other act is in- 
volved. Whether or not the general assembly could pass 
some act upon the subject of compulsory education, which 
might be unconstitutional, is not to be debated now. All 
that can be said now must pertain and relate to the act in 
question, and must be limited to the provisions of the act 
complained of by the plaintiff in error. 

The principal ground upon which the act itself is 
assailed is, that it compels the parent to do that which, by 
the law of nature, he is not compelled to do; that the law 
of nature is supreme and superior to legislative authority, 
and that the right of the parent under this law was never 
surrendered by the people of Ohio when they adopted either 
the constitution of 1802, or the constitution of 1851. It is 
contended that when these constitutions were adopted certain 
rights were reserved, and consequently could not be affected 
by any constitutional provision or enactment. Among these 
was the right of the parent to educate his child. In other 
words, it is maintained there is no authority in either of 
the constitutions of this state under which the Legislature 
can regulate, to the extent which it has by the provisions 
of the act in question, the subject of education. That 
power, it is claimed, was never surrendered by the people, 
and therefore is beyond or above constitutional or legis- 
lative control. 

The proposition is stated by Mr. Hurd, of opposing 
counselj on page 22 of his brief, as follows : By the natural 
law the parent has the right to educate the child. This 



THE STATE OF OHIO VS. THE EEV. PATRICK Fo QUIGLEY. 553 

right, like other natural rights, is inalienable, cannot bo 
surrendered by the parent, nor taken away from him, nor 
abridged by society. It is a right above constitutions and 
law, which cannot be destroyed or impaired by any act, 
either of constitutional conventions or legislatures. It fol- 
lows, therefore, that if in the constitution there was a pro- 
vision authorizing the Legislature to interfere with or impair 
this natural right of the parent, it would be void, because 
society, in ordaining its fundamental law, cannot confer 
such power upon a legislature. 

The answer to this proposition is, that it is not true or 
sound. It is absolutely unsupported by a single authority, 
except that we find it stated in the brief of a lawyer of. 
national reputation. Unless that stamps it with authority, 
it cannot be accepted as such. 

The proposition, which I announce as being the true 
one, is this : When a people adopt a constitution which 
confers full authority upon the Legislature, all rights of the 
people relative to any legislative matter are merged into 
the constitution, unless the constitution itself provides 
otherwise. 

Nqw, upon this question as to what powers are sur- 
rendered to the constitution when it was adopted, let me 
read from Cooley on Constitutional Limitations, page 104 : 
In creating a legislative department, and conferring upon 
it the legislative power, the people must be understood to 
have conferred the full and complete power as it rests in, 
and may be exercised by, the sovereign power of any coun- 
try, subject only to such restrictions as they may have seen 
lit to impose, and to the limitations which are contained in 
the constitution of the United States. The legislative de- 
partment is not made a special agency for the exercise of 
specifically defined legislative powers, but is intrusted with 
the general authority to make laws at discretion, 

" The people, in framing the constitution," says Denio, 
chief-justice, *' committed to the Legislature the law-making 
power of the state, which they didn't expressly or implied- 



554 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

ly withhold. Plenary power in the Legislature for all pur- 
poses of self-government is the rule." 

" It has never been questioned, as far as I know," says 
Eedfield, chief-justice, ''that the American legislatures 
have the same unlimited power in regard to legislation 
which resides in the British Parliament, except where they 
are restrained by written constitutions. That must be con- 
ceded, I think, to be a fundamental principle in the polit- 
ical organizations of American states. We cannot well 
comprehend how, upon" principle, it should be otherwise. 
The people must, of course, possess all legislative power 
originally. They have committed this in the most general 
and unlimited manner to the state legislatures, saving only 
such restrictions as are imposed by the constitution of the 
United States, or of the particular state in question." 

I maintain, therefore, that when the people of this state 
adopted the constitution of 1802, full authority was con- 
ferred by that instrument upon the Legislature to legislate 
upon any subject, without any rights remaining with the 
people except those not expressly delegated. That is to 
say, no half-way power was inserted in the constitution. 
The people could not, for example, insert the clause in a 
constitution by which authority was conferred upon the 
general assembly to legislate upon a given subject, and 
then maintain that such authority had been reserved by 
them. 

The authority to legislate in such a case over the sub- 
ject-matter must be full and complete. The only limitation 
being that which may be elsewhere expressed in the con- 
stitution. 

But independent of this general doctrine, which I main- 
tain is the true position, there can be no question but that 
the constitutional provisions upon this subject are clear 
and explicit, and have received judicial consideration. 

The constitution of 1851, by the second section of the 
sixth article, makes it the duty of the general assembly to 
" secure a thorough and efficient system of common schools 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 555 

throughout the state." It reads as follows : " The general 
assembly shall make such provisions by taxation or other- 
wise, as, with the income arising from the school trust 
fund, will secure a thorough and efficient system of com- 
mon schools throughout the state ; but no religious or 
other sect, or sects, shall ever have any exclusive right to 
or control of any part of the school funds of this state." 

Your Honors will observe that it is not only the duty 
of the general assembly to secure a system of common 
schools throughout the state, but the system must be 
" thorough " and " efficient." 

I am particular to call the attention of the court to the 
language of this section, because it shows that the framers 
of the constitution knew and realized that they were deal- 
ing with a subject which was not only to endure as long as 
the state endured, but that it must be a continually in- 
creasing subject; that they were not dealing with one 
school, but with the whole system of common schools 
throughout the state for all time to come, or until the 
people should change the provisions of the constitution. 
But what is "the system of common schools?" and what 
is a thorough and efficient system of common schools? 
These qualifying terms cannot be said to have no meaning 
in this connection. There are no useless words in the con- 
stitution. And in construing such an instrument every 
term, and especially every qualifying term, must receive 
due weight and force. Who is to judge and who shall 
determine how far the Legislature shall go in establishing 
a thorough and efficient system of common schools? 
Evidently the power is lodged with the Legislature itself. 

Whether the Legislature can abuse this power or not in 
some particular case may be ultimately a question for the 
courts. But it will certainly not be claimed that there is 
an abuse of power in requiring the children of the state to 
be taught the most elementary principles necessary for an 
education such as this bill requires — for instance, reading^ 
writing, arithmetic, and geography. Nor do I understand 



556 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY, 

tliat counsel claim that in this case there has been an 
abuse of power. They claim that there is an absence of 
power. 

I now call the court's attention to that clause of sec- 
tion 7 of the constitution which provides as follows : 

"Eeligion, morality, and knowledge, however, being 
essential to good government, it shall be the duty of the 
general assembly to pass suitable laws to protect every 
religious denomination in the peaceable enjoyment of its 
own mode of public worship and to entourage schools and the 
means of instruction. 

In construing this clause, in connection with section 2 
of Article YL, the supreme court in the case of The State 
ex rel. Games v. McCann and Others, 21 0. S., p. 205, in an 
opinion delivered by Judge Day, said : 

" It is left to the discretion of the general assembly in 
the exercise of the general Legislative power conferred 
upon it to determine what laws are suitable to secure the 
organization and management of the contemplated system 
of common schools without express restriction, except that 
no religious or other sect or sects shall ever have any 
exclusive right to or control of any part of the school funds 
of the state." 

Under these powers and requirements of the constitu- 
tion the general assembly has attempted to organize by 
suitable laws an efficient system of common schools for the 
purpose (as expressed in the 63d section of the act of 
1853) *' of conferring the advantages of a free education to 
all the youth of this state." This decision settles the 
question as to the source of power, for " it is left to the 
discretion of the general assembly in the exercise of 
general legislative power conferred upon it, etc." The 
general legislative power referred to is found in section 1, 
Article II. of the constitution, and is as follows : 

" The legislative power of this state shall be vested in a 
general assembly, which shall consist of a senate and 
house of representatives." 



THE STATE OP OHIO VS. THE REV. PATEICK F. QUIGLEY. 557 

Tlie general legislative power conferred by the consti- 
tution of 1802 is found in the first section of the first article 
of that instrument, as Mr. Hurd stated in his opening 
argument, and is substantially like the general power con- 
tained in the constitution of 1851. It is as follows : 

'' The legislative authority of the state shall be vested 
in a general assembly, which shall consist of a senate and 
house of representatives, both elected by the people." 

Under this provision and general grant of legislative 
power in the constitution of 1802, it was held in the case of 
The State v. The City of Cincinnati, 19 0.,p. 197, that "the 
whole subject of organizing and regulating schools is very 
properly left to the general assembly in the exercise of its 
legislative powers." 

The legislative powers of the general assembly, as 
referred to in this case, were derived from the general 
grant of legislative authority contained in the constitution 
of 1802 above cited. 

It will be observed that the general grant of legislative 
authority is in almost the same words in the constitution 
of 1802 as is the same grant of power under the constitu- 
tion of 1851. The meaning of the language of the two 
constitutions is the same. This court having decided in 
the McCann case that " the general assembly in the exer- 
cise of its general legislative power had the discretion to 
determine what laws were suitable to secure the organiza- 
tion and management of the contemplated system of 
common schools," without express restriction, and the 
general grant being the same in the two constitutions it 
follows necessarily that the general assembly under the 
old constitution had the same power to enact a compulsory 
educational law as the Legislature has under the present 
constitution ; the construction of the provision of one by 
this court is the construction of the provisions of the other, 
for the provisions are alike. But it is argued with great 
vehemence by gentlemen upon the other side, that because 
no law of this character was passed in this state for nearly 



558 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

tliree quarters of a century, therefore, when the Legislature 
did pass such a law, it was void. 

The answer to this argument is met by the decision of 
this court in the case of Gordon v. The State, 46 0. S., page 
607. That was a case in which the constitutionality of 
Township Local Option was involved. And, notwithstand- 
ing such a law was never passed before in this state, prob- 
ably because it was never supposed such a law would be 
constitutional, yet this court in the case referred to, in an 
exhaustive opinion by Judge Dickman, sustained the con- 
stitutionality of the act. If the people of the state slum- 
ber upon their constitutional rights, that is no reason why 
they should be denied them when they wake from their 
slumber. The argument of counsel upon this question 
detracts from the dignity of his reputation and weakens 
his cause. Reduced to its logical conclusion, it means that 
whatever laws the legislature passes involving constitu- 
tional questions must be passed quickly — that is, soon 
after the adoption of the constitution. This would require 
some one to determine the time which the legislature would 
have to act in. But who is to be such arbiter ? Is it to be 
the court ? Or shall it be left to the whimsical views of 
counsel ? Great constitutional questions, which it is the 
high province of courts to determine, are none the less great 
because they arise from legislative enactments passed long 
after the constitution was adopted. Every department of 
learning, every school of philosophy, even the sacred doc- 
trines of theology, teach us that mankind has been slow to 
learn the great and valuable lessons of the world. Almost 
every book of the New Testament, which is read and be- 
lieved and whose inspiration is unquestioned throughout 
Christian civilization, was rejected as unauthoritative nearly 
two centuries after the crucifixion. 

In this connection I cite the court, and I commend to the 
consideration of counsel the beautiful but expressive lan- 
guage of Judge Welch in Board of Education of Cincinnati 
V. Miner et al, 23 0. S.-y page 251 : " As individuals, so with 



THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY. 559 

governments, the most valuable truths are often discovered 
late in life ; and when discovered, their simplicity and beauty 
make us wonder that we had not known them before." 

Hon. J. K EiCHARDS, Attorney-General, in concluding 
the argument on behalf of the defendant in error, said : 

May it please the Court : I shall not attempt in the few 
minutes that are left to enter into a discussion of the im- 
portant questions that are involved in this case. 

The points urged by Mr. Hurd in his oral argument 
were all thoroughly discussed by him in his brief. To that 
brief, and to a long, able, and exhaustive brief of Judge 
Dunne, of counsel on the other side, in support of his view 
of what the rights of parents are under the natural law, I 
have prepared and filed with the court a printed brief or 
argument. I cannot condense that argument, covering as 
it does seventy-eight pages, into a twelve minutes' discus- 
sion, and I shall not attempt to, but shall ask the court to 
read my argument. The conclusions I reached are set 
forth in the last three or four pages. I propose now to 
give the conclusions with some comments^ 

The purpose of the compulsory education act of Ohio 
is to see that every child in the state gets what belongs to 
him — an elementary education, and to see that the state 
gets what it must have in order to endure, namely, an in- 
telligent citizenship. The law on trial was passed in 1889. 
Another but ineffective law had been passed in 1877. The 
act was passed after long and serious consideration, upon 
the repeated recommendations of the educational authori- 
ties of the state, namely, the state school commissioner 
of common schools, for the best of reasons and with abso- 
lute unanimity. In each branch of the general assembly 
every member present voted for this bill, and not one mem- 
ber voted against it. And the same thing is true of the 
later amendments. So there is absolutely no politics in 
this law. Mr. Hurd would have the court understand that 
the measure is of an exceptional character, but this is not 



560 THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

SO. Twenty-seven states and territories have compulsory 
educational laws. These are : Massachusetts, District of Co- 
lumbia, Vermont, New Hampshire, Michigan, Washington, 
Connecticut, New Mexico, Nevada, New York, Kansas, Cali- 
fornia, Maine, New Jersey, Wyoming, Ohio, Wisconsin, 
Ehode Island, Illinois, Dakota, Montana, Minnesota, Ne- 
braska, Idaho, Colorado, Oregon, and Utah. The govern- 
ment of the United States has recognized this principle in 
the organization of Alaska, where education is compulsory, 
and the deputy United States marshals perform the duties 
of truant officers. But compulsory education is not con- 
fined to the United States. Every civilized country of 
Europe without exception has compulsory education laws. 
Matthew Arnold, writing in 1866, said that in all the civil- 
ized states of continental Europe education was compulsory 
except in France and Holland, and it is now compulsory 
there. When he wrote it was not compulsory in England or 
Scotland, but, thanks largely to his efforts, since 1870 it 
has been in England, and since 1872 it has been in Scot- 
land, and with excellent results. 

Now, in the second place, this act does not interfere 
with the right of the parent to educate his child. It is the 
duty of the parent by the natural law to educate, and the 
right follows the duty. Assuredly, the parent has the right 
to educate, because it is his duty to educate. But the 
parent may not violate the duty to use the right. He may 
not withhold, neglect, or pervert the education of his child, 
else the state may interfere in the interests of the child or 
for its own security and for the welfare of society. These 
principles have been recognized from the first. In my 
brief I quote from Hobbes, Locke, Puffendorf. I might 
also have quoted from Grotius, and the other great pub- 
licists and writers upon the law of nature. There is not 
one of them but recognizes and affirms the interest society 
has in the education of children. And the great political 
economists, the men that Mr. Hurd has so much respect 
for in certain lines of statecraft, such men as Adam 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY, 561 

Smith, and John Stuart Mill, they all assert — and Adam 
Smith wrote in 1776 his great work on the '* Wealth of 
Nations " — they all assert the right of the state to interfere 
for its own safety, and to provide education, and to impose 
education and to compel education, if necessary. And the 
same thing is true of the legal authorities, strictly speak- 
ing, the judges and jurists and the great commentators, 
Blackstone, Kent, Story. Why, Blackstone himself 
speaks of the law being defective, the law of that day, in 
that it did not constrain the parent to bestow a proper 
education upon his children. This was not a denial of 
power to the state, but a rebuke of the state for not exer- 
cising power which it had. It was a recognition of the 
right of the state to make education public, to make it 
compulsory if the state saw fit to do so ; and even at 
that time, if your Honors please, I beg you to note 
that many laws had been passed and were in force in 
England upon the subject of education. There were laws 
that went to the extent of interfering with the rights of 
conscience, unjust and indefensible laws, but laws, the pas- 
sage of which prove beyond question the full and ample 
power of the legislature over this matter. For instance 
the Catholic parent was prohibited from sending his child 
beyond the seas, " whether the purpose be to prevent its 
good education in England, or in order to enter into or 
reside in any Popish college, or to be instructed in the 
Popish religion." Such was the condition of things in 
England prior to the formation of any pi the American 
constitutions. 

In the third place, this act does not violate any rights 
of conscience. The choice of the school is left to the 
parent. He may send his child to what school he pleases, 
but he must send it to some school or otherwise educate it. 
So long as he does his duty to the child, the law puts on 
him no compulsion or restraint whatever, and there is no 
impertinent intrusion by the state into the affairs or man- 
agemejit of private or parochial schools. The facts re- 



5G2 THE STATE OF OHIO ^6'. THE REV. PATRICK F. QUIGLEY. 

quired are of public interest, without which no compulsory 
education law could be enforced. 

In what way, if your Honors please, could it have hurt 
Dr. Quigley's conscience to fill the blanks sent him and 
advise the state of the names, ages, and residence of the 
pupils in his school ? The state did not ask this for the 
purpose of forcing these children to go to the public 
schools. It had to have the information, first, to compel 
the truants from the parochial school tO attend that school, 
and next to ascertain what children were in school, so that 
it might look after and take care of the children not in 
school, the vicious and incorrigible, or the neglected and 
abused. How can the state look up the children out of 
school without first knowing all, the children in the 
schools ? 

And what is there in the law to offend any Catholic 
parent? Is there a single parent who objects to the 
branches required — spelling, reading, writing, English 
grammar, geography, and arithmetic ? Is there a single 
parochial school that does not teach these branches ? All 
the Catholic parent has to do to comply with the law is to 
send his child to the parochial school. He cannot object 
to that, for that he has been doing right along. That his 
church and his conscience require him to do. Let him 
obey his church, and he will obey the law. 

Finally, full authority was given the Legislature by the 
constitution to pass this law. Plenary power to legislate 
for the common welfare for all the purposes of civil govern- 
ment is vested in the Legislature. That popular education 
is a proper subject of legislation has been recognized from 
the beginning by all representative forms of government ; 
but in addition the ordinance of 1787 and the constitutions 
of 1802 and 1851 explicitly recognize the need of education 
among the people and solemnly command the Legislature 
to provide for it. In this connection I call the attention of 
the court to the fact that the special provisions of the con- 
stitutions relating to education which Mr. Hurd argues are 



THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY. 563 

provisions conferring power, are not provisions conferring 
power, but are injunctions or commands to use power 
already conferred. I maintain that if, in its discretion, the 
Legislature thought this law was expedient, either in the 
first place, to promote the general good and ward off the 
perils to society from vice and ignorance in the young ; or, 
in the next place, to make the common schools thorough 
and efficient by bringing to them every child not elsewhere 
being educated, thus making education thorough and 
efficient by making it universal ; in either case the Legis- 
lature has spoken and the law must stand. 

Now, in conclusion, as I have a moment left, I want to 
read, your Honors, from this most excellent pamphlet,' 
copies of which I have filed with my brief, a pamphlet 
written by the Rev. Thomas Bouquillon, who is now pro- 
fessor of moral theology in the Catholic University in 
Washington, on this matter of the right of the state to 
educate. On page 25 : " The state has authority to see to 
it, that parents fulfill their duty of educating their children* 
to compel them, if need be, and to substitute itself to them 
in the fulfilment of this duty in certain cases. In the use 
of this authority, the state does not lend a hand to the ex- 
ecution of the natural law. It forces the parents to fulfill 
a duty that binds them most strictly, it protects the child 
and safeguards his future, it removes from society most 
serious perils. ... As to modern writers on education, 
they seem to us to be almost unanimous on this point. 
Taparelli teaches that- the state has a strict duty to remedy 
the shameful and unnatural negligence of so many parents, 
who, forgetting the first of their obligations, the education 
of their children, accustom them to idleness, misery, and 
crime ; that the state has the duty to see to it that every 
child receives that education to which it is entitled as soon 
as bud in him the first germ of reason ; that it has the duty, 
as holding the place of the Sovereign Father from whom 
comes paternity, to rouse parents from lethargy, to compel 
the unnatural father to behave as a true father." 



564 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

On page 26: "If the state may coerce parents who 
neglect the education of their children, so also may it 
determine a minimum of instruction and make it obligatory. 
Who admits the former must admit the latter. The conse- 
quence seems to us logically necessary, and we are surprised 
that all do not see it. Consider, when are parents called 
negligent ? Evidently when they do not give their children 
a minimum of education. If, then, you grant to the state 
power over cases of neglect, you at once give it power to 
define what is the minimum of education, and to exact that 
minimum by way of prevention and of general precept. A 
law prescribing a minimum of instruction is nothing else, 
it seems to us, than the application of a principle of natural 
law to the given circumstances of this or that country." 

On page 31 : " And now were we to define in what con- 
sists true liberty of education, that liberty which is the 
honor of a people worthy and capable of self-government, 
we should say that it consists in the absence of all useless 
obstacles to the communication of truth on the part of 
individuals, families, associations, of all those, in a word, 
who are fit to teach. This liberty, thanks be to God, exists 
in the United States — nowhere so wide and sacred." 

Mr. Watson : May I cite, your Honors, to one or two 
additional authorities : 1 Cent. Laiv Journal, 248 ; 21 Id, 
384; 17 Id. 221, and 4 Allen, 238? In one of those cases 
you will find that the United States district judge sentenced 
the prisoner to be confined in jail until he should learn to 
read, and sentenced another prisoner to teach the fellow 
how to read. 

Chief- Justice Spear: You may adjourn court until 
Tuesday at ten o'clock a.m. 



And thereupon court adjourned on the 29th day of April, 
1892. 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 565 



DECISION. 

On the 10th day of May, 1892, the supreme court handed 
down an order for the court below to execute its judgment, 
declaring the judgment affirmed, but assigning no reasons 
therefor. The following is a copy of the order : 



SUPEEME COUET OF THE STATE OF OHIO. 

The State of Ohio, City of Columbus ; Pateick Quigley, 
V, The State of Ohio; January Term, a.d. 1892. 

ERROR TO THE CIRCUIT COURT OF LUCAS COUNTY. 

This cause came on to be heard upon the transcript of 
the record of the Circuit Court of Lucas County and was 
argued by counsel. On consideration whereof, it is ordered 
and adjudged by this court, that the judgment of the said 
circuit court be and the same is hereby affirmed. 

It is further ordered that the defendant in error recover 
from the plaintiff in error its costs herein expended, taxed 
at $ 

Ordered, That a special mandate be sent to the Court 
of Common Pleas of Lucas County to carry this judgment 
into execution. 

Ordered, That a copy of this entry be certified to the 
Clerk of the Circuit Court of Lucas County " for entry." 

I, Urban H. Hester, Clerk of the Supreme Court of 
Ohio, do hereby certify that the foregoing entry is truly 
taken and correctly copied from the journal of said court. 

Witness my hand and the seal of said court, this 17th 
day of May, A.D. 1892. 

[SEAL.] aEBAN H. HESTEE, aerh. 

By Horace M. Crow, Deputy. 

Eecorded in C. (7. Jour,, 3, 243. 

666 



THE STATE OE OHIO V,?. THE REV. JATKICK F. QUIGLEY. 56? 

SUPKEME COUET OF OHIO. 

STATE OF OHIO, CITY OF COLUMBUS. 

To the Honorable Court of Common Pleas, within and 
for the county of Lucas, Ohio, greeting : 

We do hereb}^ command you, that you proceed, without 
delay, to carry the within and foregoing judgment of our 
Supreme Court of Ohio, in the cause of Patrick Quigley v. 
The State of Ohio, into execution, the petition in error 
herein and heretofore granted to the contrary notwith- 
standing. 

Witness, Urban H. Hester, Clerk of our said Supreme 
Court of Ohio, at Columbus, this 17th day of May, 1892. 

[SEAL.] UEBAN H. HESTEE, Clerk. 

By HoEACE M. Crow, Deputy, 

Eecorded in Mandate Jour., 2, 287. 



THE STATE OF OHIO. LUCAS COUNTY, ss. 

I, J. P. Bronson, Clerk of the Court of Common Pleas 
and Circuit Court of Lucas County, Ohio, do hereby cer- 
tify the foregoing to be a true and correct copy of the 
mandate issued from the Supreme Court of the State of 
Ohio, and filed in my office on the 19th day of May, a.d. 
1892, in the above entitled cause. 

In testimony whereof, I hereunto subscribe my name 
and affix the seal of said court, at Toledo, this 26th day of 
October, a.d. 1892. 

[SEAL.] J. P. BEONSON, 

Glerhf Lucas County Courts, 



APPENDIX No. I. 

EESOLUTIONS PASSED BY CATHOLIC SOCIETIES AT TOLEDO, EN- 
DOESING DE. QUIGLEY'S STAND. 

The following are some of the resolutions adopted by 
the Catholic societies of Toledo, and referred to above on 
p. U: 

No. 1. 

ST. FKANCIS DE SALES BKANCH, NO. 249, CATH- 
OLIC KNIGHTS OF AMEEICA, OF TOLEDO, O. 

{Adopted June 16, 1890.) 

Wheeeas, The St. Francis de Sales Branch, No. 249, of 
the Catholic Knights of America, of Toledo, Ohio, is a 
Catholic society and therefore deeply interested in the 
prosperity of Catholic schools and the freedom of Catholic 
education ; and 

Wheeeas, The Legislature of the State of Ohio hasr 
recently passed an act in which is practically asserted the 
right of the state to interfere in the management and dis- 
cipline of the Catholic parochial schools ; and 

Wheeea^s, The public school officials of the city of Toledo 
have caused the indictment by the grand jury of this 
county of Rev. Dr. Quigley, rector of St. Francis de Sales 
Church, Toledo, a regular member and the Spiritual Direc- 
tor of this knightly branch, because of his refusal to act as 
the clerk of the clerk of said public school officials, under 
compulsion and without offer of compensation, thus seek- 
ing to heap upon our reverend brother the indignity and 

568 



THE STATE OE OHIO VS. THE REV. PATRICK F. QUIGLEY. 569 

the outrage of attempting to reduce him to the condition of 
involuntary servitude, in defiance not only of the constitu- 
tion of the State of Ohio, but also of the great charter of 
human rights, and the God-given principle of human lib- 
erty ; now, therefore, 

Resolved, That, passing for the present the question of 
what rights the state may have over schools supported by 
public funds and not deviating from our usual policy of 
refraining from interference in matters of mere partisan 
politics, we endorse the language of Horace Taylor, Eepub- 
lican editor of Madison, Wis., when he said : " We emphat- 
ically deny the right of the state to interfere with any 
school which does not receive public money for its support ;" 
and also of the Toledo Commercial, another Republican 
secular paper, which said on the 10th inst. : " If the state 
insists on regulating private schools, the private schools 
may, with equal propriety, demand a division of the public 
fund." 

Resolved, That, subject to the action of the state council, 
we demand the repeal of all laws in Ohio in contravention 
of that doctrine, and, until such repeal is had, will, irre- 
spective of party ties or affiliations, cast our votes in all 
elections in such way as in our opinion will best forward 
the cause of such repeal. 

Resolved, That our brother knight, Eev. Doctor Quigley, 
in the defence he is compelled to make against this at- 
tempted persecution by the state, has our entire sympathy, 
and shall have our personal and financial support so far as 
needed to the extent of our ability. 

Resolved, Tlmi ^Q are anxious to hear expressions of 
opinion on this matter from our brother branches in this 
state, as also from the state council at its next state con- 
vention. 

Resolved, That copies of these resolutions be forwarded 
to the secretary of the state council and to our brother 
branches in this state and all other men's Catholic societies 
in Ohio ; also that similar copies be furnished to the daily 



570 THE STATE OF OHIO VS. THE EEV. PATlilCK F. QUIGLEY. 

papers of Toledo and tlie leading Catholic papers of the 
state, with request for publication. 

Adopted by unanimous vote of Branch No. 249, Toledo, 
Ohio, June 16, 1890. 

Attest : M. J. Thompson, President. 

P. W. CoNLAN, Secretary. 

No. 2. 
THE Y. M. C. B. A. 

ADOPT EESOLUTIONS SIMILAR TO THOSE PASSED BY THE CATHOLIC 

KNIGHTS. 

At the regular meeting of the Young Men's Catholic 
Benevolent Association held June 20, 1890, the following 
resolutions relative to the controversy between Dr. Quigley 
and the school board were adopted : 

Wheeeas, The Young Men's Catholic Benevolent As^ 
sociation of Toledo, O., Branch No. 475 of the I. C. B. U. 
of the United States and Canada, is a Catholic society ; and, 

Wheeeas, We have before us a duly attested copy of the 
resolutions adopted June 16, 1890, by the St. Francis de 
Sales Branch, No. 249, of the Catholic Knights of America 
of Toledo, with regard to the action of the State of Ohio in 
undertaking to prosecute the Rev. Dr. Quigley of Toledo 
for resisting state interference with his parochial schools, 
and, 

Wheeeas, The Rev. Dr. Quigley is a member and the 
spiritual adviser of this society ; and 

W^HEEEAS, We sympathize with all the declarations in 
said resolutions contained and find them fairly expressing 
our sentiments in the matter ; and 

Wheeeas, The said Branch 249 has asked for expres- 
sions of opinion from other Catholic societies in Ohio upon 
the question of such state interference ; and 

Wheeeas, We deem it well for all Catholics of the state 
to be united in such resistance and harmonious in the 



THE STATE OF OHIO VS, THE HEV. PATRICK F. QUIGLEY. 571 

declaration of principles upon wliicli such resistance is 
based ; now, therefore, 

Besolved, That we indorse and accept as our own the 
preamble and resolutions adopted by said Catholic Knights, 
Branch No. 249 as aforesaid, with such changes only of 
name, place, date, etc., as may be needed to make them 
read as the same expression on the part of this society ; 
and 

Besolved, That a copy of these resolutions be presented 
to the said Rev. Dr. Quigley, that another copy be forwarded 
to said Branch No. 249 of the Catholic Knights of Toledo, 
and that other copies be furnished the press for publication. 

Adopted unanimously at Toledo, Ohio, this 20th day of 
June, A.D. 1890. 

Attest : M. G. Given, President, 

E. J. Gaven, Secretary, 

No. 3. 
THE UNIFORMED KNIGHTS. 

At a special meeting of the Uniformed Catholic Knights 
of Toledo, Ohio, Branch No. 602 of the Catholic Knights of 
America, held on June 24, the following preamble and 
resolutions were unanimously adopted : 

Wheeeas, The Legislature of the State of Ohio has 
assumed the right of insisting that all children shall receive 
a certain amount of secular education, and has provided a 
fund for that purpose which it distributes only among 
secular schools in which it is claimed that no religious in- 
struction is openly given ; and 

Whereas, There are half a million Catholics in the 
State of Ohio who cannot, in conscience, use those schools, 
and therefore have established parochial schools of their 
own, for the support of which they are by right entitled to 
their proper share of the education fund ; and 

Whereas, The education fund of the state is collected by 



572 THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 

public tax, whicli, though apparently levied principally on 
property in houses and lands and in goods, wares, and 
merchandise, is not really paid by the rich owners of such 
property, but is merely advanced by them to be collected 
back from the occupier and consumer in the shape of in- 
creased rents and profits ; wherefore our Catholic fellow- 
citizens, being principally renters and consumers, contribute 
a far larger proportion to the school fund than is done by 
many property owners in the country, and many property 
owners out of the country, foreign syndicates, aliens, and 
absentees, pay none at all ; and 

Whereas, In most civilized countries these principles 
of political economy and religious liberty are understood 
and accepted, and equality and freedom in education 
secured by permitting denominational education and dis- 
tributing the fund among all schools, in sums proportioned 
to the number of pupils therein, whereby a universal 
approval is secured for such public school system ; but 

Whereas, A large number of people in Ohio are so 
prejudiced against Catholics that they seek to deprive them 
of all their rights in the matter of education ; first, by so 
ordering the public schools that Catholics cannot use them, 
and then asserting the right to supervise, manage, control, 
and thereby harass, weaken, and, when desired, ultimately 
destroy the Catholic parochial schools ; and 

Whereas, To that end they have artfully introduced 
the thin edge of the entering wedge of legislation which, 
when fully driven home, is to burst asunder our parochial 
school system, and have done this by enacting an ap- 
parently simple, innocent little law for the gathering up of 
truant pupils and bringing them even to our own doors, 
thus seemingly helping us in our own work, but in this 
connection have insidiously ordered that the managers of 
our schools shall furnish to the state a list of all pupils 
therein under penalty of punishment for neglect or refusal ; 
and 

Whereas, Such legislation implies the right of the state 



THE STATE OF OHIO VS. THE KEV. PATRICK E. QUIGLEY. 573 

to interfere in the management of our schools — a claim we 
must resist, so long, at least, as the state does nothing 
towards establishing them and contributes nothing towards 
their support ; and 

Wheeeas, The state has already by grand-jury indict- 
ment instituted a serious criminal prosecution against our 
esteemed brother Knight and spiritual director, the Eev. 
Dr. Quigley of this city, for merely failing to comply with 
that apparently simple little law ; and 

Whereas, That law is an infringement upon our natural 
rights as men, as well as upon our individual rights as 
citizens, in denying us the right to control the education of 
our children ; and 

Whereas, Though acting now in our capacity as private 
citizens, without any suggestion or dictation from any 
ecclesiastical authority whatever, and as to a matter where- 
in religious liberty forms so prominent a part, we advert 
to the fact that at the Catholic Congress held at Baltimore 
in November, 1889, a distinguished Catholic archbishop, in 
his official sermon, preached in the cathedral church of 
that city before the assembled bishops and archbishops 
of the United States, announced this doctrine : " It is a 
time for novelties — and religious action, to accord with the 
age, must take new forms and new directions. Let there 
be individual action. Laymen need not wait for priest, nor 
priest for bishop ; " and 

Whereas, The said sermon was published in the official 
report of said congress and in more than half a million 
copies of Catholic newspapers in this country, and the 
greater part of a year has passed without the propriety of 
that doctrine having been questioned so far as we have 
heard ; and 

Whereas, We have before us a duly attested copy of 
the resolutions of Branch 249 of the Catholic Knights of 
America, of Toledo, Ohio, adopted June 16, 1890, the pio- 
neer declaration on this matter, arid have heard the same 
read and have fully considered the same ; now therefore 



57-i THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 

Eesolvedj That we heartily indorse the said resolutions 
and accept them as our own, with such change only of 
name, place, date, etc., as may be needed to make them the 
expression of the same sentiments on the part of this 
society. 

Resolved, That a copy of these resolutions be presented 
to the Rev. Dr. Quigley, another copy forwarded to said 
Branch 249, and other copies be given to the press for 
publication. Adopted June 24, 1890. 

Attest : J. J. O' Gorman, F resident, 

0. C. Poole, Secretary. 



No. 4. 
SACRED HEART PARISH RESOLVES. 

A very spirited meeting of the school society of the 
Sacred Heart parish, Toledo, Rev. Anthony Eilert, pastor, 
was held on June 29, Charles Wohlleb, president, being in 
the chair, and B. R. Baker, secretary. 

After a long and animated discussion of the rights of 
parents in the matter of education, and of the unjust claims 
now being urged on behalf of the authority of the state in 
that matter, the following preamble and resolutions were 
adopted : 

Whereas, A law has been lately passed in the State of 
Ohio by which the state is given the power to interfere in 
the management of private schools, and which undertakes 
to make our Catholic priests work for the state against 
their will and without pay ; and 

Whereas, The state has already begun a prosecution 
against the Rev. Dr. Quigley of this city, because of his 
refusal to surrender his personal liberty in the matter; 
and 

Whereas, We have before us a duly attested copy of the 
resolutions of the St. Francis de Sales Branch, No. 249, of 



THE STATE OF OHIO VS. THE REV. PATRICK F. QUIGLEY. 575 

the Catholic Knights of America, of Toledo, Ohio, in the 
matter of the said prosecution, which has been read and 
fully considered by this meeting ; and 

Whereas, The said Branch 249, pioneer in the matter 
of these public declarations, has asked for an expression 
of opinion on this subject from other Catholic societies in 
this state ; now, therefore, in response to said invitation, 
and also of our own motion, 

Eesolved, That we are good and loyal citizens of this 
country, and more particularly of that portion thereof 
known as the State of Ohio, and, being members of the 
Holy Catholic Church, are prompted to this loyalty not 
only by cordial inclination, but also by the most solemn 
religious obligation. 

Besolved, That we will uphold and defend, with our lives 
if need be, all just rights of the state, not only against do- 
mestic insurrection, but against any encroachment thereon 
by any foreign prince, potentate, or power, not excepting 
any, of what name, grade, or station soever. 

Besolved, That we will, with equal care, courage, and 
determination, watch over, defend, and, if necessary, fight 
for the sacred right of personal liberty, without which all 
forms of government were a mockery and a snare. 

Besolved, That we indorse the said resolutions of said 
Sfc. Francis de Sales' Catholic Knights, with such changes 
only of name, place, date, etc., as may be needed to make 
them the expression of the same sentiments on the part of 
this meeting, and particularly that part which denies the 
right of the state to control schools which it does not sup- 
port, and which demands the repeal of all laws in Ohio 
against that doctrine, and which pledges us to cast our 
votes in all elections as will best secure such repeal, and 
that we will contribute our proper share to the fund neces- 
sary for the defence of the said Dr. Quigley in the ^aid 
prosecution. 

Besolved, That a copy of these resolutions be presented 
to the said Eev. Dr. Quigley, that another copy be for- 



576 THE STATE OF OHIO VS, THE llEV. PATRICK F. QUIGLEY. 

warded to said Catholic Knights, Branch No. 249, and that 
other copies be furnished the press for publication. 

Unanimously adopted at East Toledo, this 29th day of 
June, A.D. 1890. 

Attest : Charles Wohlleb, President, 

B. E. Baker, Secretary. 

No. 5. 
ST. JOSEPH'S SCHOOL SOCIETY. 

At a meeting of St. Joseph's School Society of St. 
Francis de Sales parish, Dr. Quigley, pastor, held in 
Toledo, June 29, a.d. 1890, the following preamble and 
resolutions were unanimously adopted : 

Whereas, A large number of our fellow-citizens are so 
prejudiced against Catholics as to deny them their share 
of the public education fund, and. to justify such denial, 
allege among other reasons that our schools are so inferior 
in the secular instruction given that they ought not be en- 
couraged ; and 

Whereas, It is absurd to say that a Church which has 
educated the world for 1900 years should not be better 
able to educate than the men of yesterday ; and 

Whereas, Since the public schools of this city have 
failed to take up the challenge for a competitive examina- 
tion recently offered them by our parochial schools, thus 
showing that Toledo is one place, at least, where we may 
claim that the public schools are inferior to our Catholic 
schools, even in the matter of secular instruction ; and 

Whereas, The State of Ohio is now making war on our 
parochial schools by asserting a right to invade them and 
control action therein, and is now criminally prosecuting 
the Kev. Dr. Quigley of this city for resisting such claim ; 
and 

Whereas, We have before us a duly attested copy ot 
the resolutions of Branch 249 of the Catholic Knights of 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 57*? 

Toledo, O., sustaining the said Dr. Quigley, and have fully 
considered the same ; now, therefore, 

Besolved, That we indorse the said resolutions of said 
Branch 249, and Join in all the pledges therein set forth. 

Resolved, That a copy of these resolutions be presented 
to the Kev. Dr. Quigley, that another copy be forwarded 
to said Branch 249, and that copies be furnished the press 
for publication. 

Attesir: K. P. Thompson, President 

Francis Carney, Secretary. 

No. 6. 
THE KNIGHTS OF ST. PETEE'S PABISH 

ACT IN HARMONY WITH THEIR SISTER SOCIETIES ON THE EDU- 
CATIONAL MATTER. 

At a meeting of Branch No. 561 of the Catholic Knights 
of America, of St. Peter's parish, Eev. P. Danenhoffer, pas- 
tor, the following preamble and resolutions were unani- 
mously adopted : 

Whereas, Catholic parochial schools in this state are 
denied their share of the school fund on the plea, among 
others, that, as religious instruction is given therein, to 
give state aid to such schools would be to aid the religion 
taught there, and thus cause a union of church and state, 
forbidden by law ; and 

Whereas, There is nothing in that plea, because the 
payment proposed is not for the religion taught there, but 
for the secular instruction given, as, when the state pays for 
army clothing furnished, the only question asked is, is the 
clothing good and up to the standard required, and not 
whether in addition to this the furnishers did or did not sing 
certain songs or say certain prayers while they did the 
work ; and 

Whereas, The state now proposes not only to starve out 
our parochial schools by withholding all supplies from 



678 THE STATE OF OHIO VS. THE KEV. PATRICK F. QUIGLEY. 

tliem, but to forcibly enter, manage, and control the same, 
and is now criminally prosecuting Rev. Dr. Quigley of 
Toledo, O., for resisting such claim ; and 

Whereas, We have before us a duly attested copy of 
the resolutions of Branch 249 of the Catholic Knights of 
Toledo, O., sustaining the said Eev. Dr. Quigley and pledg- 
ing him financial support in his said contest with the state, 
and have fully considered the same ; now, therefore, 

Resolved, That we indorse the said resolutions of said 
Branch 249 and join in the pledges therein set forth. 

Resolvedy That a copy of these resolutions be presented 
to the Rev. Dr. Quigley, another copy forwarded to said 
Branch 249, and copies be furnished the press for publica- 
tion. 

Adopted July 2, 1890. Charles Niemesch, Pres, 

Henry Schlagheck, Sec. 

No. 7. 

MORE RESOLUTIONS INDORSING THE POSITION 
OF REY. DR. QUIGLEY. 

At a meeting of St. Martin's Branch, No. 194, of the 
Catholic Knights of America, of St. Mary's parish, Toledo, 
O., Rev. M. Zoeller, S.J., pastor, held July 3, 1890, the 
following resolution was unanimously adopted : 

Resolved, That we heartily indorse the position taken by 
Rev. Dr. Quigley in regard to the question pending between 
him and the board of public schools of this city, and fur- 
thermore concur in the resolutions passed and published 
by Branch 249, C* K. of A., on June 16, and ordered to 
be made known to the public by the Toledo press. 

This was unanimously passed by our branch in regular 
session. 

Melchior Schall, President 

A. Senn, Secretary. 



THE STATE OE OHIO VS. THE RE 7. PATRICK F. QUIGLEY. 579 



No. 8. 

THE CENTEAL COUNCIL, SIX SOCIETIES, OF THE 
C. K. A. OF TOLEDO, JOINS IN THE PEOTEST. 

At the regular quarterly meeting of the Central Coun- 
cil of six branches of the Catholic Knights of America of 
Toledo, Ohio, viz. : Branch 249 of St. Francis de Sales par- 
ish, Eev. Dr. Quigley, pastor ; Branch 561, St. Peter's par- 
ish, Eev. P. Danenhoffer, pastor ; Branch 147 of Immacu- 
late Conception parish ; Branch 578 of St. Joseph's parish, 
Eev. L. Braire, pastor ; Branch 602, the Uniformed Catho- 
lic Knights of Toledo ; and Branch 194 of St. Mary's parish, 
under the care of the Jesuit Fathers, held at St. Michael's 
Hall, July 6, 1890, and all of said branches being duly and 
properly represented at said meeting, the following pream- 
ble and resolutions were adopted : 

Whereas, We have before us a duly attested copy of the 
preamble and resolutions of Branch No. 249 of our society in 
this city, adopted June 16, 1890, in the matter of the prose- 
cution of the Eev. Dr. Quigley by the State of Ohio for his 
alleged refusal to comply with certain requirements of the 
truant law of this state ; and 

Whereas, The said Branch No. 249 has asked for an ex- 
pression of opinion on this subject by its brother branches 
in this state ; and 

Whereas, We are fully in sympathy with all the decla- 
rations contained in said preamble and resolutions ; now, 
therefore, 

Besolved, That we heax'tily approve of the action of Dr. 
Quigley in said matter, and hereby adopt and make our 
own all the declarations, promises, and pledges set forth in 
the resolutions of said Branch No, 249. 

Besolved, That a copy of these resolutions be presented 



580 THE STATE OF OHIO VS. THE EEV. PATRICK F. QUIGLEY, 

to the Rev. Dr. Quigley, and that other copies be furnished 
to the press for publication. 

Attest : E. J. Goulet, President. 

P. J. Mettler, /Secretary, 



No. 9. 

PREAMBLE AND RESOLUTIONS OF ST. PETER'S 
AID SOCIETY. 

At a meeting of the Aid Society of St. Peter's parish, 
Rev. Peter Danenhoffer, pastor, the following preamble 
and resolutions were unanimously adopted : 

Whereas, We understand it to be that, although Catho- 
lics, we are, nevertheless, citizens of the great republic of 
the United States of America, and therefore entitled as of 
right to full religious liberty, and to be treated by our fel- 
low-citizens with a proper respect in all matters pertaining 
to religion : and 

Whereas, A large number of our fellow-citizens are so 
eaten up with prejudice against us that they seemingly 
cannot treat us with common courtesy in this matter, but 
persistently charge us with being an ignorant, traitorous 
set of superstitious idolaters — conduct hardly conducive to 
cordial relations ; and 

Whereas, These people, not content with driving us out 
of the public schools, which we have done as much as any 
others to build and support, vindictively seek to pursue us 
now even into our own private schools, claiming the right 
to control and oppress us even there, and are now crimi- 
nally prosecuting the Rev. Dr. Quigley of this city for re- 
sisting such claim ; and 

Whereas, We have before us a duly attested copy of 
resolutions of Branch 249 of the Catholic Knights of this 
city, sustaining the action of said Rev. Dr. Quigley and 
pledging him financial aid in his said contest with the 
state J now, therefore, 



THE STATE OF OHIO VS, THE REV. PATRICK F. QUIGLEY. 581 

Besolved, That we indorse said resolutions of said 
Branch 249, and accept as our own all the declarations and 
pledges therein contained. 

Besolved, That a copy of these resolutions be presented 
to the Eev. P. F. Quigley, D.D., and to said Branch 249, 
and that copies of the same be given to the press for pub- 
lication. 
Attest : Chas. D. Knecht, President. 

Henry Sohlagheck, Secretary, 



No. 10. 
ANOTHER INDORSEMENT. 

At a regular meeting of St. Vincent de Paul's Society of 
St. Francis de Sales parish. Rev. Dr. Quigley, pastor, the 
following preamble and resolutions were unanimously 
adopted : 

Whereas, A great many people in Ohio seem to believe 
that because it is said " the majority must rule," it is meant 
thereby that the majority may enact any law they please 
and compel obedience to it ; and 

Whereas, That doctrine rightly means only that ma- 
jorities may rule provided they rule justly, for a majority 
has no more right to do wrong than any one of its individ- 
ual members has ; and 

Whereas, Every parent has a God -given right to con- 
trol the education of his own child, a right which no politi- 
cal majority may justly take from him ; and 

Whereas, This involves the right of parents to com- 
bine and establish private schools for the education of their 
own children free from any interference by any earthly 
power, so long as nothing contrary to the essential interests 
of the state is taught therein ; and 

Whereas, The only essential function of the state is to 
preserve order in society J and 

WhereaSi Though in a republic the state may fix a 



582 THE STATE OF OHIO VS. THE KEY. PATRICK F. QUIGLEY^ 

standard of education as a condition for suffrage, it has no 
right to insist on any one qualifying himself for suffrage 
if he do not care to do so ; and 

Whereas, The privilege of helping to make the laws 
of the country, of voting upon its policy and helping to 
shape its destiny, should be looked upon as an honor 
granted as a reward instead of a mere duty to be enforced 
by law ; and 

Whereas, The state may grant aid to schools impart- 
ing instruction necessary for suffrage qualification, and, 
when such grant is made to a private school, may, if such 
grant is accepted, inspect such school for the purpose of 
seeing whether the grant is rightly earned, but, beyond 
that, may in no way interfere with the management or con- 
trol of such school ; and 

Whereas, There can be no doubt that the state can 
have no right to interfere with any unaided private school ; 
yet 

Whereas, An unwise majority in Ohio has recently 
passed a law undertaking to give the state a right to con- 
trol unaided private schools, and is now criminally prose- 
cuting the Eev. Dr. Quigley of this city for resisting that 
law ; and 

Whereas, We have before us a duly attested copy of 
the resolutions of Branch No. 249 of the Catholic Knights 
of this city in this matter and have fully considered the 
same ; now, therefore, be it 

Resolved, That we indorse the said resolutions of said 
Branch No. 249, and join in all the pledges therein set forth. 

Resolved, That a copy of these resolutions be present- 
ed to said Dr. Quigley, another copy forwarded to said 
Branch No. 249, and copies be given to the p»ress. 

Adopted July 3, 1890. 

Attest : M. Donovan, President 

J. J. O'GOBMAN, Secretary. 



THE STATE OF OHIO VS, THE EEV. PATRICK P. QUIGLEY, 583 



No. 11. 

FATHEE BAEEY'S CONGEEGATION INDOESES 
DE. QUIGLEY. 

At a meeting of the Good Shepherd congregation, East 
Toledo, Eev. P. Barry, rector, the following preamble and 
resolutions were unanimously adopted : 

Whereas, The state prosecution now pending against 
Eev. Dr. Quigley is, in its final results, neither personal, 
affecting Dr. Quigley alone, nor local, limited to St. Francis 
de Sales parish only, but general, as far as the State of 
Ohio is concerned, and coming home to the manager of 
every Christian school, of what denomination soever, in this 
State of Ohio ; and 

Whereas, What is Dr. Quigley's case to-day may be 
ours to-morrow, be it therefore 

Resolved, That we indorse the action of Eev. Dr. 
Quigley in refusing compliance with the requirements of 
this compulsory education law in its present form, which 
is well calculated to greatly embarrass our parochial school 
system, and therefore be it also 

Resolved, That we, in self-defence, unite our forces, 
moral and financial, with those of Eev. Dr. Quigley in de- 
manding such legislative relief as will secure us liberty of 
conscience in the management of our parochial schools, and 
also be it 

Resolved, That we send a copy of these •resolutions to 
Eev. Dr. Quigley. 

Daniel Fitzgerald, 

Chairman, 
[Church Seal.] Attest : 

Thomas Kirby, 

Secretary, 
July 13, 1890. 



INDEX. 



A 

PAGE 

Addis and Arnold, Catholic Dictionary, cited by Mr. Barber 549 

Ahrens, education and crime 349 

Andrews, president Brown University, morality in education 409 

Appeal, from Common Pleas to Circuit Court 177 

" ** Circuit Court to Supreme Court 304 

Aristotle, citations from 393-416 

" natural law 33 

Arnold and Addis, Catholic Dictionary, cited 549 



B 

Baker, B. R., secretary 576 

Baltimore decrees on education 330 

Barber, Mr., prosecuting Attorney Lucas Co., argument of, for the state, 

Common Pleas 88-99 

** " the same, in Circuit Court 266,281 

" " " " " Supreme Court 540-551 

" '* Tribute of, to Leo XIII 548 

Barry, Rev. P 583 

Bassett, Mr., peremptory challenge to 16 

Bayma.S. J., Rev. Fr., cited 216 

Belgian bishops' pastoral on education 429 

Bennett Law in Wisconsin 484 

Bentley, Hon. R. A., Associate Judge, Circuit Court. 178 

Bismarck, Prince, submits case to Leo XIII 55 

Blackstone, on education 429 

Blanks, under Compulsory Education Law : who to fill? 227 

Bluntschli, on compulsory education 349 

585 



586 INDEX. 

PAGE 

Bouquillon, Dr., pamphlet of, criticised by Judge Dunne 354r403 

** Two propositions 358 

** his alleged facts criticised 359-364 

** " second proposition " 379-388 

*' - " logical bridge 389 

** " celebrated syllogism 391 

" what is his meaning ?. , 400-403 

** his pamphlet on education condemned by Civiltd Cat- 

iolica 423 

" ** " filed by Attorney-General 492 

" •* cited by Mr. Barber 548 

•* " citations from by Attorney-General 563-564 

Brace, Rev. Chas. L., education and crime 489 

Brann, Rev. Dr., St. Agnes, New York 218 

Breed, E. E., deputy clerk , 13 

Brinkerhoff, Judge, citation from 245 

Bronson, J. P., clerk Lucas Co 567 

Brownson, Orestes A., cited 217 

Burlaijiaqui, natural law, by Mr. Hurd 524 

C 

Caldwell, Miss, founder Catholic University 361 

Catholic Knights, indorse Dr. Quigley 568 

Catholic Societies, of Toledo, indorse Dr. Quigley 568 

Cathrein, limits of state rights in education 217 

Carney Francis, secretary 577 

Cauer, Dr., education and Chinaism 349 

Cavagnis, reference to 362 

" citation from 371 

Central Council, Catholic Knights, resolutions 574 

Charlemagne and schools. . . 359 

Chatard, Bishop 218 

'* " criticises Bouquillon's pamphlet 437 

" indorses Father Holaind's " 428 

Church, the special meaning of 190 

** and state, separation of 194 

Cicero, natural law 30-32 

♦' 524 

•' 525 

Civiltd Catiolica, corrects Bouquillon's Zigliara citation. 384 

" " condemns Bouquillon's reasoning 397 

** ** " pamphlet on education. 423-425 

Circuit Court, decision of 282-304 

Civil power, two schools as to source of 69 



INDEX. 587 

PAGE 

Coleridge, C. J., cited by Attorney-General 499 

Compulsory Education Law, section 1 131, 123 

" ** *" injustice to the parent, the child, and the 

state 150, 151 

" ** " the fallacies concerning. ...» 209 

" ** « '. void because of its penalties 246,464 470 

** ** '* history of, in Ohio .478 

" ** " " in other States 482 

•* *• " text of 1-S 

/* ** " general, forbidden by naturallaw 40-50 

** " in paternalism. 200 

** ** see education 

** •* " schools 

** *• violates paternal rights 201 

" ** " conscience" 202 

•* ** '• personal liberty „ 207 

Concilio, de 218 

Compton, Harvey W 17 

Condemned propositions 374 

Conlan, P. W., secretary 57O 

Conscience, rights of, Von Hammerstein on , 329 

" " Catholic hierarchy on 330 

" " Cardinal Gibbons " 333 

*' " Bishop Keane " 337 

** " Frederic Harrison " 338 

PiusIX. " 335 

" " guaranteed by Ohio constitution 146 

Constitutions reviewed 59 

Constitution of Ohio on religious liberty , . 126 

" " " "education 126,127 

'* " " school funds. 142 

" " " " private education 142 

Constitutional construction 127-129 

Constitutionality of Compulsory Education Law questioned, because 

of its penalties 246 

" " further questioned by Mr. Hurd 445-470 

,* " Mr. Richards, 490 

Conway, S. J., Rev. Dr = 216 

Cooley, Judge, cited by Attorney-General 505 

Cooney, M. J 17 

Corcoran, Dr 217 

Costa-Rosetti 319, 365, 412 

Council, see Vatican and Baltimore. 

Crow, Horace M. , Deputy Clerk Supreme Court 567 



588 INDEX. 

D 

PAGB 

Dailey, James A 17 

D'Alton, Austin, L 17 

Danenboffer, Rev. P 577 

Decisions, Judge Pugsley's, upholding compulsory education law 168, 177 

of Circuit Court 282-304 

" Supreme Court 565-567 

De Concilio 218 

Denio, C. J., cited by Attorney- General 506 

Mr. Watson. 533 

Demosthenes, natural law 32 

Dickman, Judge, question to Mr. Hurd 524-526 

Disher, John E., truant officer, witness 17 

Donisthorpe, on natural rights 418 

Donovan, M. , President. 582 

Dunne, Hon. Edmund F., appears for defendant 16 

Dunne, Judge, argument of, in Common Pleas 19-87 

*' ** Circuit Court 178-221 

" Supreme Court 305-434 

review of Judge Pugsley's decision 180 

summary of argument in Common Pleas 308 

" Circuit Court 309 

seventeen propositions on education 404-408 

supplemental argument, Supreme Court 423-434 

charge to jury 18 



E 

Education, see schools. 

** free, is communism , 211 

*• control of 315-328 

" compulsory physical 326 

«« *' Frederic Harrison on 338 

" secular, and crime 346-350 

** Prof. Bouquillon's pamphlet on, reviewed by Judge 

Dunne 354-403 

" propositions on, condemned 374 

" Judge Dunne's seventeen propositions on 404-415 

*• Belgian bishops on 429 

" Views of Puffendorf, Blackstone, Kent, Brown, 

Walker and others 456,457 

" where compulsory 487, 488 

** a parental right by natural law 45 

** distinguished from instruction .....81-83 

Eilert, Rev. Anthony 574 



INDEX. 589 

PAGE 

Encyclical, what is an 56 

" Leo XIII and comments on, by Judge Dunne. , 183-186 

' ' seven of Leo XIII, various subjects, titles of 216 

Epictetus, natural law 33 

Equity courts and compulsory education 410-412 

Erastus 417 

Errors at trial, argument on, by Mr. Hurd 443.445 

** fifteen assignments of 224 



F 

Family : nature, origin, and rights of. .... 187-190 

'* The, first human society 51 

" Prof. Thompson of Princeton, on 188 

Ferrara blades, legend on 421 

Fitzgerald, Daniel, chairman 588 

Forti on natural law 28 



G 

Gaven, E. J., secretary 571 

Gholson, Judge, on legislative power 127 

" '* cited by Attorney- General 508 

Gibbons, Cardinal, consequences of communism 211 

** Christian Heritage 211 

Gibson, Mr. , Justice, Penn., cited by Attorney-General 498 

Gillet, Abbe < 217 

Given, M. G., President 571 

Gladden, Wasldngton, education and morality 346 

Good Shepherd, Congregation of, resolutions 583 

Goulet, E. J., President 580 

Grith, Monsignor, Bishop of St. Gall, celebrated amendment of, in Vati- 

can Council 377,378 

Grootde 417 

Grotius 417 



H 

Haines, Hon. George R. , associate Judge Circuit Court 178 

** ** delivers opinion of Circuit Court 282 

Hall, Charles H., foreman grand jury 13 

Hall, Rev. Mr., humorous illustration by 83 

Harrison, Frederic, on religious education .7. 338-340 

" '* condemns uniformity in education 350 



y' 



590 INDEX. 

PAGE 

Hammerstein, Von, see Von Hammerstein 

Hancock , John, on Ohio Compulsory Education Law 540 

Hegel 417 

Higgius, President, Detroit, condemns Bouquillon's syllogism 397 

Hobbes, Thomas, cited by Attorney-General 493 

Holaind, S. J., Rev. Rene 217 

" " citations from 367 

Hooker, Rev. Richard 25 

on natural law 25-28 

Hester, Urban H. , clerk Supreme Court 566 

Hurd, Hon. Frank H. , appears for defendant 16 

" ' ' argument in Common Pleas for Dr. Quigley 119-153 

** ** motion to dismiss the case 16 

** ** address to jury 145 

" '* exceptions to Judge Pugsley's charge to jury 166 

" ** argument in Circuit Court , 222-255 

** ** brief in Supreme Court 435-470 

'* ** oral argument in Supreme Court 518-540 

** ** answers Judge Dickman's question 524 

*• " " " "second " 526 

" Mr. Watson's " 531 

*' " Judge Minshall's '• 536 



I 

Inalienable rights, how differing from inamissible 77 

Indictment, objection to, by Mr. Hurd 439-442 

" sufficiency of, by Attorney- General 518 

Individual, the origin of 167 

Ireland Archbishop, of St. Paul, address of 547 

♦* " Mr. Barber's tribute to 548 



J 



Jansen, on State right in education 218 

Johnson, Judge, opinion of, in House of Refuge case 294 

" •' cited by Attorney-General 499 

Judgment, motion in arrest of 167 

Jurisdiction of court questioned 228, 240, 436, 439 

" ** Common Pleas by Attorney- General 510-513 

Jury, impanelment of 16 

" charge to, asked by Judge Dunne 18 

♦* " given by Judge Pugsley ■. 152-167 

•* verdict of 167 



INDEX. 591 

K 

PAOB 

Keane, Bishop, on conscience rights 337 

Kent's Commentaries , education of children 457 

Kentucky, representation in Congress 344 

Kirby , Thomas, secretary 583 

Knecht, Charles D. , president 581 

Knights of St. Peter's Parish, resolutions concerning Dr. Quigley. . . . 577 

Kramer, S. J. , Rev. Louis 17 



Lactantius 524 

Law , see natural law and compulsory education law. 

Legislative power, limit of, Mr. Hurd 139, 130, 131, 142, 243, 246 455 

" " not to teach private schools 143 

" " as to taxation 143 

Leo XII. Bull on education 363 

Leo XIII. Letter to French bishops. , 378 

" " and the Caroline Islands 55 

" " seven encyclicals, titles, and dates 216 

Liberty, danger of limiting 214 

Lieber, Dr., on legal hermeneutics ,. ... 60 

Life , man's natural right to 66 

Locke, John , cited by Attorney-General 493 

Lucidly citation from 385 

Lycurgus. 416 



McCaffery, John E 17 

McCarthy, Rev. T. P 17 

" testimony of 277 

McPherson on infants, cited by Attorney-General 495 

IMcIlvane, Judge, cited by Attorney- General 505 

Machiavelli 416 

Manning, Cardinal, cited by Mr. Barber 268 

" "on parental rights 425-427 

Marshal], Judge 218 

Mixed schools condemned 378 

Massachusetts Compulsory Education Law, 1642 , 541 

Messmer, Bishop, rejects Prof essor Bouquillon's views 428, 429 

Mettler, P. J., secretary ., . . 580 

Meyer 216-219 



592 IKDEX. 

PAGE 

Mill, John Stuart, opposes monopoly in education , 325 

' • *' " cited by Attorney-General 494 

Ming, S. J. , Rev. Father 217 

Minshall, Judge, question to Mr. Hurd 536 

Month, the London, cited by Mr. Barber, favoring compulsory education 268 

Mooney, Mr. John A 218 

MuUer on natural law 32 

Murphy, John J... 17 

N 

Natural law defined 24-35 

• " " patristic authorities on 30-57 

" classic ** ** 30 

•* '* medie<ral " " 58 

** independent" ** 58 

** *• modern Catholic authorities on 58 

•♦ • Taparellion 58 

" St. Paul 29 

** " St. Augustine, Origen, Tertullian, St. Ambrose, St. 
Jerome, St. Basil, St. Chrysostom, Theodoret, and St. 

Prosper 30 

*♦ Cicero 29-32 

*' Socrates, Plato, Aristotle, Xenophon, Sophocles, Seneca, 

Epictetus, Demosthenes , , 32 

•*. Miiller 32 

•' JudgePotter 38 

*• other authorities on 352, 353 

'* recognized in Declaration of Independence 41 

" recognized in 1787 by U. S. Congress 43 

'• Ohio Constitution 40-44 

Natural rights 451 

Niemesch, Charles, president 578 

Note 47, by theologians of Vatican Council 382 

Newman, Cardinal, cited by Mr. Barber 268 

New trial, motion for 168 

" ** decision, Pugsley, J., denying 168-177 



O'Gorman, J. J., president ,.... 574 

** secretary 582 

Ohio, basis of civil authority in , 70 

Okey, Judge, cited by Attorney-General 504 

Origen, on natural law 30 



INDEX. 593 

PAGE 

Ordinance of 1787 ." 4a 

O'Sullivau S1& 

P 

Fallen, Cond^B., social problem solved , ... 217 

Pureuts, punished by Compulsory Education law 124 

Parental care, what is proper Ib-i 

' ' duty, Puffeudorf » 132 

'• Blackstone 132 

'• Chancellor Kent on ...133 

" " Walker, American law. . , 457-458 

" rights, as to childreu, Thornton, J 139 

Red'fleld, J .'.139 

" " Dunne 311-315 

" " Mr. Hurd 451 

" , 45 

" violated 150 

" obligations 54-457, 458 

' ' control of education , exclusive 84 

Parliament, English, power of, different from American Congress. ... 69 

Parochial schools defined, Mr. Hurd 445-520 

" " are they public or private « 225 

" " recognized as being private schools by Pugsley, J. . 153 

Paternalism in government, forbidden in Ohio. 208 

Pattisou, Governor, vetoes Compulsory Education, bill, Penn- 
sylvania 327-415 

Penalties, Compulsory Education law. 122 

People V. Flagg * 127 

" -w. Purdy 128 

Personal liberty rights = 342 

Philanthropy, fallacy in cry of, about compulsory education 214 

Pius IX., syllabus, education 374 

" " necessity of religious education. 335 

Plato, natural law , 32 

Political power, origin of 38 

Poole, C. C, secretary 574 

Popular Science Monthly, cited by Mr. Hurd, 537 

Potter, Judge , natural law % . . . 33 

Propositions condemned , . . 374 

Public good, answer to argument of 345 

Puffendorf, on education 456 

'* cited by Attorney-General 493 

** '* Mr. Hurd 523 

Pugsley, Judge, presides in Common Pleas 19 



594 INDEX, 

PAOE 

Pugsley , Judge, charge to jury 152 

Puttkamer, Von, of Prussia, minister, views of, on education and crime 348 

Q 

Quigley, Rev. Patrick F. , D.D., defendant 1 

" asked to fill blanks 9, 10 

' ' Compton's letter to 9, 10 

indictment of 11, 13, 222 

** how indictment of, received in Toledo 14 

** arrest of 15 

** set at liberty 15 

" trial of, in Common Pleas 16-177 

** statement of facts in his case. . ". : 19, 20, 21, 178, 306, 435, 436 

** was he a principal 147, 225, 303 

•' conduct in contesting law, justified 47, 48 

** a public benefactor 48 

*' was not bound to make reports, Ritchie 109-119 

" arguments in his case. 

*• " by Judge Dunne in Common Pleas 19,87 

;" <« .< - " Circuit Court. 178-221 

** *' " " " Supreme Court 305-434 

« " " Mr. Hurd in Common Pleas. . , 119-152 

" " " " " Circuit Court .225-255 

" " " " " Supreme Court. 435 

** « " " " " •' 518-540 

" *• *' Mr. Ritchie in Common Pleas 100-119 

« I. <. c. .. .. Circuit Court . 256-266 

<* " " " Barber in Common Pleas 88-99 

« *• " *' " " Circuit Court 266-281 

" " ** " " " Supreme Court. 540-551 

« ' " " Watson in Supreme Court 551-559 

" ** " " Richards in Supreme Court 559-564 

" decisions in his case, in Common Pleas 177 

" " " " " Circuit Court „ ,.304 

« " " " '' Supreme Court 565 

" appeals in his case from Common Pleas to Circuit Court 177 

" " " " Circuit Court to Supreme Court 304 

" resolutions of Toledo societies, concerning 568-583 

" " indorsed by St. Francis de Sales Catholic Knights 568 

" " ** " Young Men's Catholic Benevolent Asso- 
ciation '. . . 570 

" " ** " Uniformed Knights 571 

" " " " Sacred Heart Parish 574 

** " '* " St. Joseph's School Society 576 



INDEX. 595 

PAGE 

Quigley, Dr., indorsed by Knights of St. Peter's parish 577 

" " " " St. Martin's branch Catholic Knights 578 

•* ** " " Central Council Catholic Knights 579 

" '* *' " St. Peter's Aid Society 580 

«' " '* " St. Vincent de Paul's Society 581 

" •* '• " Good Shepherd Congregation 583 

'* ** said by the state to be a " principal of a school " 17 

" " referred to by Mr. Barber. . 94, 95, 97, 98, 277, 379, 280, 543, 
" " Mr. Ritchie... 110,111, 112, 113, 115, 117, 118, 

119, 256, 257 

" Mr. Hurd 147,435,518 

' < Judge Pugsley, ... 157, 164, 169, 177 

** *' Sentence pronounced upon. 177 

** *' Appeals from Judge Pugsley's court 177 

** '* another copy of indictment of 222 

*' " assignment of errors in his trial 224 

** " reference to, by Mr, Hurd 225,226,241,242 

*' " referred to, by Attorney-General. .475, 476, 482, 500, 512, 562 

** ** Supreme Court order 566 

'• mandate 567 



R 

Redfield, C. J. , cited by Attorney-General 506 

"" " '• Mr.Watson 554 

Reiffenstuel, parental rights , 220 

Resolutions of Toledo societies, indorsing Dr. Quigley 568-583 

Richards, Hon. J. K., Attorney-General, brief for the state, in Su- 
preme Court 471-517 

" general summary of his argument by himself 516 

" oral argument in Supreme Court 559-564 

" files Dr. Bouquillon's pamphlet as part of his brief 563 

Rickaby, S. J., Rev. Father, professor, Stouyhurst, admits some 

compulsory education 413 

Ritchie, Hon. James M. , appears for defendant 16 

*' '* argument in Common Pleas 100-119 

" Circuit Court 256-266 

" " excepts to Judge Pugsley's charge to the jury 164 

Rocheford, Mr. , testimony of 279 

Rousseau 417 



Sacred Heart Parish, resolutions concerning Dr. Quigley 574 

Sauve Mgr., The State in education 367-370 

Seating accommodations 104-109, 148, 150, 241 



596 li^DEX. 

PAGE 

Self-preservation, fallacy in state argument of 313 

" " answer to argument of , 343 

Senu, A. , secretary 578 

Seneca, natural law. 33 

Sentence of Dr. Quigley, and order for imprisonment 177 

School, see education. 

" constitutional provisions coucerciug, in Ohio, • 140 

* ' common , 144 

" public, excessive extension of studies in 334 

mixed, condemned 378 

" what kind State may establish, proposition XVI 407 

Schema, The, Professor Bouquillon's statement concerning, criti- 
cised ' 371-378 

Schilling 417 

Schiffini, professor Gregorian University, Rome, on education 434 

Schouler, domestic relations 497 

Schlagheck, Henry, secretary , 578 

SchoU, Melchior, president. . T 578 

Scribuer, Hon. C. H. , presiding Judge in Circuit Court 178 

Schmalzgrueber, parental rights , 31 

Shakespeare, citation from 400 

Shea, John Gilmary 31V 

Smith, Adam, cited by Attorney-General 494 

Solimani and nineteen others, natural law 317 

Southard, James H. , prosecuting attorney 333 

Socrates, natural law 33 

Sophocles, natural law 33 

Society, origin of 50 

" second beginning of with Noah 67 

Spencer, Herbert, condemns compulsory education law 300-346 

' * long citation from 353 

Spalding, Mr. , education and crime in Massachusetts 347 

Spalatro, free schools in 363 

Spear, C. J 518 

State, what is a ? 1 87 

" origin of the 191 

" the pagan ; 193 

" Christian 193 

" oriental 193 

States, other 193 

State rights, distinguished 194 

** the Ohio t. 195 

" and Church: . ! 194 

** rights, under natural law 1 96 

" ** who shall decide ? , 197 



IKDEX. 597 

PAGE 

State riglits, decided by courts 198 

" functions of, Catholic view 404, 405 

" duties of, in education , 405-407 

" distinction as to rights of ' 78, 79 

States, how formed 51-53 

Story, Mr. Justice, on personal liberty • 129 

" " " by Attorney-General 496 

Stangleinz/. State, by Mr. Barber 274 

St. Ambrose, reference 30 

St. Augustine " 30 

St. Basil " 30 

St. Chrysostom, reference. 30 

St. Francis de Sales Society indorses Dr. Quigley 568 

St. Jerome, reference 31 

St. Joseph's School Society, resolutions 576 

St. Martin's branch. Catholic Knights indorses Dr. Quigley 578 

St. Paul on natural law 29 

St. Peter's Aid Society indorses Dr. Quigley 580 

St. Prosper, reference 30 

St. Thomas, unjust laws do not oblige 199 

* * on natural law 221 

St. Vincent de Paul Society indorses Dr. Quigley 581 

Supreme Court decision 565 

" orderof ..566 

" " mandateof. 567 

Syllabus, education, propositions condemned by 374 



T^parelli 58,59,216,370 

" limit of state right in education 84-86 

Tarquini 217 

Tertullian, natural law SO 

Theodoret, " " 30 

Theologians, see Vatican Council. 

Thebaud, S. J., Rev. Fr 317 

Thompson, M. J., president. 570 

Thompson, R. P., " 577 

Thompson, Professor, Princeton, on the family. 188 

Toledo, societies in indorse Dr, Quigley 568-583 

Toul, Council of, and Charlemagne 360 

Trial of Dr. Quigley, regularity of, by Attorney-General 514 

Truant law, inoperative in Toledo, why 148 

Truant ofQcer, powers of 122-125 



598 IKDEX, 

u 

PAGE 

Uniformed Knights of Toledo, resolutions, concerning Dr. Quigley 571 

V 

Vatican Council, theologians of — 372-380 

" " " " celebrated note of. No. 47 383 

Von Hammerstein, parental rights 219 

" " admits propriety of compulsory education in 

special cases 219 

«* " cited by Professor Bouquillon 366 

W 

Walker's American Law, parental rights 457 

" " " parent not obliged to educate child. , 527 

Watson, Hon. D. K., ex-Attorney-General, question to Mr. Hurd 531 

" " " files additional authorities 564 

" " " argument 551-559 

Webster, Daniel, authority of the state in education. 549 

Welch, Judge, cited by Mr. Watson 558 

White, Judge, opinion of, in Reform Farm case 292 

Wetzen and Welte, Encyc. Cath. art. natural law 30 

Wines, Dr. E. E., illiteracy and crime 489 

Wilhelm II. , writes in the Golden Book at Munich. 417 

Wisconsin, Bennet Law in 484 

Witnesses in the case , 17 

Wohlbet, Charles, president 576 

Wolif, Dr 218 

Woolsey, international Law, cited by Attorney-General 495 

X 
Xenophon, natural law 82 

Y 

Young, Father 218 

Young Men's Catholic Benevolent Association of Toledo, resolutions 
indorsing Dr. Quigley , 570 

Z 

Zallinger 216 

Zigliara, Cardinal 364 

" citation of, by Dr. Bouquillon, corrected by Cmlid Cattolica. . 884 



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